An opening for the CCJ to pursue

Tony Rakhal-Fraser

A few weeks ago, the thought cum question crossed my mind, and it has been occupying my thinking since: should the Caribbean Court of Justice seek to inform and influence its community (the people of Caricom) of its ability to deliver quality, independent and effective final decisions/judgments in its jurisdictions: Original and Appellate?

Yes, I am fully aware of the principle that courts are not supposed to be advocates in their own interests – but what I am dealing with is a different issue which is even more compelling because of the historical circumstances of the creation of the modern Caribbean population, ie, through the dehumanisation and, in instances, forced transportation of its people into slavery and indentureship of different kinds.

What does all of that historical tra la have to do with the issue at hand? Everything. One important consequence of the brutal dehumanisation and socialisation of our experience has been the conditioning which we have received and imbibed as individuals and collective groups, leading to a pervading mentality of self-denial, self-defeatism; the effects of which linger through history.

One resulting trait spread abroad is the ingrained belief that we are simply not sufficiently intellectually capable to be independent and impartial in our thinking and acting to make major decisions of our own, and hence the need for outside assistance to do that which we do not have the capacity for.

It’s a psychological affliction which often has its greatest impact on those, as Lloyd Best used to say, who have been “schooled” – meaning those who have been so absorbed by their colonial education and experience that they become unable to see value in themselves and what they are capable of. Dr Frantz Fanon, psychiatrist, psychoanalyst, and social philosopher, analysed our shortcomings in Black Skin, White Masks.

That reality is played out in the Caribbean Community (Caricom) in that of the 12 states which are members of the CCJ; after 20 years, only five of them have placed faith in the Appellate Jurisdiction of the Court, preferring to hang on to the British Privy Council as their final court of appeal, a colonial hangover which they are desperately afraid to let go of.

“We are not yet ready to take on the responsibilities of a final court;” “our jurists are not sufficiently able to make final decisions;” “our politicians will intervene and dictate to our judges;” “they will not be able to make fair judgments especially when governments are involved in legal matters;” “our society is too small, not sufficient space between the judges and the population for them, the judges, to make independent judgments;” are but a few of the objections raised especially by governments, opposition parties, and members of the legal fraternity.

I have, however, never heard or read any of the objectors state specifically what is required for our judges to reach that point of capability and acceptability to handle all legal matters contracted in the region, and over what period of time we should wait for the maturation process to be achieved.

Trinidad and Tobago is a special case where the United National Congress, representative of a major part of the Indo-Trinidad population, in and out of government, has put its rationale for the blocking of legislation to move away from the British Privy Council to the CCJ in its Appellate Jurisdiction, as articulated back in 2010, that there were no (Trini) Indians on the bench of the CCJ.

Well, since then, there are now one Indo-Trini and one Indo-Guyanese judge on the Bench: Justice Peter Jamadar, and Justice Arif Bulkan, plus Justice Maureen Rajnauth-Lee; and if we go by her surnames and looks, she must contain measures of Indo and Afro in her origins, with the last of her surnames (Lee) suggesting that her husband is of Chinese origin.

That makes her doubly qualified, according to the ethnic argument, as the ideal dougla without any one ethnic loyalty to be beholden to, and so can be expected to deliver judgements without bias in matters which involve contentious ethnic groupings; she being Trini-Caribbean to “De Bone”

The reality of the mixed ethnicity of the judges removes from the UNC party in opposition and government, any arguable reason for continuing to remain outside of the Appellate jurisdiction of the Court.

Additionally, and what I consider of significance is T&T’s Prime Minister, Kamla Persad-Bissessar, having to move away from her failed attempt to brow beat her fellow leaders with “badjohn” talk to reverse their decision on the process adopted to appoint the Secretary General, and turn instead to the CCJ for the advisory opinion on the issue, is an expression, forced or not, of belief that the Court, admittedly not in its appellate jurisdiction, has the capacity to deal in finality and fairness with a matter of great significance to the functioning of the integration movement.

While not the same as moving to the Appellate Jurisdiction of the CCJ, the above creates space and responsibility for the CCJ to convince of its capacity and its history of quality judgments.

I shall continue.

Tony Rakhal-Fraser – freelance journalist, former reporter/current affairs programme host, and news director at TTT; programme producer/current affairs director at Radio Trinidad; correspondent for the BBC Caribbean Service and the Associated Press; graduate of UWI, Carimac, Mona, and St Augustine – Institute of International Relations.