When Prime Minister Kamla Persad-Bissessar raised the issue of the implementation of the Caribbean Court of Justice (CCJ) as our final court of appeal in criminal matters, she seemed to have hit a raw nerve within the People's Partnership in relation to the Congress of the People (COP).
It would appear that the general public in the region has some mixed reviews. The politicians also got the feedback about those reviews from the person in the street and there was an obvious ambivalence to take any action because there is political uncertainty.
Why is there political uncertainty? What are people afraid of? These issues need to be discussed openly in our societies. The Government of Belize was able to implement it because it had the requisite majority in its House of Representatives to make the change because the government was so minded. Belize joined Barbados to abolish appeals to the Privy Council and Guyana, who added the CCJ, as the only three countries that have adopted appeals to the CCJ.
The CCJ represents a real test of regional unity and constitutional reform. None of that will happen meaningfully if it is imposed mechanically. Accomplishing true regional integration on this matter will require constitutional amendments that must be driven by compromise and consensus. The Westminster-Whitehall systems of government in the Caribbean 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 political 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 the systems of government in the Commonwealth Caribbean, 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.
Consensus will be required for the attainment of special majorities for bills seeking to amend their constitutions in their legislatures as well as in the referenda that some countries will require because of the provisions in their constitutions. Compromise is the tool that will bring this consensus.
How many of today's oppositions in the Caricom region support the CCJ? To what extent do the people of the region support the idea? If there is a change of government in some countries of the region, will there be a secure and guaranteed future for the CCJ notwithstanding the protective clauses surrounding it? How many oppositions would want to renegotiate what the previous governments of their countries had already negotiated?
In other words, will the court 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 the current majoritarian democratic systems and fails to gain acceptance through the use of referenda where such requirements exist, then is Caricom playing with virtual fire over an institution that is intended to be a central part of the future stability of the region.
It is obvious that, at the time of writing, the jury is still out on the CCJ (no pun intended) across the region. 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.
Can political leaders on all sides reach out to one another on the basis that regional unity is a laudable goal and that the differences of opinion on the policy issues can be worked out by debate and dialogue between them? This can be done without it appearing to be a sign of weakness.
Will judges of the CCJ renounce their knighthoods and their membership in Her Majesty's Privy Council? Or is this going to be case of do as I say and not as I do. Some leadership is required here from the judges of the CCJ themselves.
If not, there is no reason to change if the governments of the region can simply ask the Privy Council to sit locally with those CCJ judges who are members of Her Majesty's Privy Council presiding and voila you will have a regional court! This is an alternative to mending the constitution.