Last week, outgoing p resident of the Caribbean Court of Justice (CCJ) Michael de la Bastide lamented the fact that more countries in the region had not signed on to have the CCJ as their final court of appeal. Such expansion will require constitutional amendments driven by compromise and consensus. Our systems of government are designed to operate on the basis of division, that is, a government and an opposition.
This is the fundamental premise of the Westminster-Whitehall tradition. It has operated in the United Kingdom with great success because of the fact that it evolved together with British society so that no written constitution is required for its general working on a day-to-day basis. The Opposition in the British system is considered to be the alternative government and there is common allegiance to the Crown so that Her Majesty's Government and Her Majesty's Loyal Opposition function on the basis of the potential for the reversal of roles. The Leader of the Opposition is made a member of Her Majesty's Privy Council and is allowed briefings on Privy Councillor terms in certain situations together with Ministers of the Crown.In our systems of government in the region, the opposition is usually regarded as the outcast of the system and there is little inclusion so that when oppositions do become governments they tend to offer payback to their previous opponents by denying that which they too were denied.
If the Commonwealth Caribbean is to make any fundamental advance on the issue of adopting the CCJ as its final court of appeal, it will have to embrace constitutional reform. In order to overcome the hurdles of entrenched provisions in our written constitutions, there will have to be consensus and compromise for the attainment of special majorities for bills seeking to amend our constitutions as well as in the referenda that some countries will require.But this system does not bestow any responsibility upon the party that is in the minority. They are expected to oppose as a form of check and balance in the hope that their turn to return to power will come at a future date.
When that turn does come, it can lead to fundamental changes of policy on matters of regional significance because of a pre-existing absence of consensus. How many of today's governments or oppositions in the region support the CCJ?The question therefore is whether the court can become a part of the regional landscape on an organic or a mechanical basis? If the court is not endorsed across the political aisles in our current majoritarian democratic systems and fails to gain acceptance through the use of referenda where such requirements exist, then we have to face the political reality that the expansion will not take place.
It is obvious that there is political opposition in some quarters and political skepticism in others. Regional governments have to make that final commitment to secure the future of this institution by engaging in acts of consensus with their oppositions which ought to lead to government and opposition going to the people collectively to offer the court as a regional icon that will last beyond our lifetime.The current strategy in some quarters seems to be one of antagonism against those who do not support the court, while those who ask fundamental questions for which there are inadequate answers are viewed as trouble-makers who need to be silenced or ignored.
When the judges of the CCJ themselves become advocates in their own cause, they are joining the ranks of the politicians and engaging in judicial politics. A judge taking a swipe in the political arena against those who have not agreed to have the CCJ as their final court of appeal as yet is dangerous and may undermine the perception of the court in the minds of those who are skeptical, but may be converted.Perhaps the source of the problem may lie in the diagnosis offered by Selwyn Ryan writing in the Sunday Express on February 13, 2005 at Page 11 under the headline "Regime Change Needed in Judiciary." According to him:
• "It is in fact now becoming clearer that what we seem to have done when we achieved independence in 1962 was to interweave the woolen wig of the coloniser with the ethnic hair of the tribesman. We did it so 'skillessly' that the links between the one and the other are there for all who have eyes to see."
He goes further to say in the same article:
• "It is also clear that there continues to be a great deal of cronyism and jockeying for position within the judiciary and that the brethren are as divided along ethnic and personal lines as they have been in the past."
• If Ryan is right about the local judiciary, what will prove him wrong in the minds of the public, the Privy Council or the CCJ? This might help to answer de la Bastide's anguish about why there is little political will to make the change.