With the extraordinary exception of the Mia Mottley phenomenon in Barbados, Gaston Browne of Antigua & Barbuda and Keith Mitchell of Grenada are currently the two most electorally-popular prime ministers in the Caribbean. A scant eight months ago, both Browne and Mitchell led their respective parties to resounding general elections victories, each claiming 59% of the popular vote. Gaston Browne’s Antigua & Barbuda Labour Party won 15 of 17 constituencies, while Mitchell clean-swept his way to all 15 of Grenada’s seats. Incredibly, Mitchell’s 15-nil triumph was the third time that he’d led his New National Party to a clean-sweep at the polls (1999, 2013 and 2018)
Alas, with all of their recent electoral support; with all of their overwhelming mandate; with all of the State’s publicity and propaganda machinery at their disposal, both Browne and Mitchell were unable to convince their fellow citizens to support referenda that would replace the British Judicial Committee of the Privy Council with the Caribbean Court of Justice (CCJ).
It’s not that they couldn’t convince voters to clear the ridiculously-high 67% threshold necessary to amend that provision of the Constitution. The failure was more abject. They couldn’t muster a simple majority. Both leaders failed to get half of the electorate to even vote, and failed to convince half of those voting to support the CCJ.
Fifteen years after the establishment of the CCJ, nine years after the failed referendum in Saint Vincent and the Grenadines, and 57 long years after the idea of Caribbean integration was put to the vote in Jamaica, the region is still waiting for its first direct popular mandate to step beyond the boundaries demarcated by colonial constitution-writers.
Browne and Mitchell have proven, once again, that the surest way to frustrate any progressive initiative in the Caribbean is to hold a referendum on the subject.
This is not a blog posting about why people should vote in favour the CCJ. After the defeats in Antigua and Grenada, there will be no opportunity for anyone in the Caribbean to vote on this matter for another decade or two. The “why should I support the CCJ” debate is politically moot, or at least dormant, until 2030 or so.
Further, anyone who has tried to convince an opponent of the CCJ to change course must surely realize that it is a fool’s errand. There are six types of opponents to the CCJ:
- Those who are afraid of, or reluctant to embrace change
- Those who don’t trust Caribbean people to build their own institutions
- Those who passionately prefer all things foreign, white and wonderful
- Those who are naked political opportunists
- Those who are indifferent to the issue, or confused by the competing propaganda
- Those who have been misled by someone from the one of the first five categories
Despite my most open-minded best efforts; despite giving every benefit of the doubt; despite taking their arguments seriously and being on guard against charges of being dismissive, condescending or smug, I have yet to find one CCJ opponent whose opposition is rooted in high principle or strong logic. They all fall within one or more of those six categories.
The problem with these categories is twofold. First, it’s mighty hard to argue with fear, learned helplessness, self-hate, raw politics or indifference. Second, the CCJ opponents never admit to being in one or more of these categories. Sometimes, they don’t even admit it to themselves. Instead, they litter the discourse with all sorts of spurious straw men that mask the fundamental logical deficiencies of their opposition.
So, for example, we got the argument in Grenada that one couldn’t support the CCJ because the Government wouldn’t let future election petitions go to the CCJ. Of course, current election petitions can’t go to the Privy Council either, but that apparently doesn’t matter.
Or, you hear that the local magistracy or high court is underfunded and undermanned. But the underfunding occurred while the Privy Council held sway, not the CCJ. And the day after the referendum, the lower courts in Grenada and Antigua & Barbuda are no better funded or staffed.
Or, you hear that Caribbean politicians will interfere with the Court, while ignoring that the CCJ is the institution most insulated from political interference in this hemisphere. While US Presidents campaign on their ability to directly select partisan judges to push their agenda, and have those judges approved or rejected by elected politicians in party-line votes, CCJ justices are as far removed from the political process as possible.
Or, someone belches forth an example of some obscure local judgment that was overturned by the Privy Council, as an example of the superior justice afforded by the Lords in London. Of course, if the highest upheld every single judgment from a lower court, the appeals process would be irrelevant. Indeed, what is shocking is the low percentage of Caribbean cases overturned by the Privy Council.
Or, you hear that the Privy Council guarantees justice for the small man in the Caribbean, when the truth is that the quest for justice ends short of the Privy Council for all but death-row inmates or the wealthiest litigants. No one else can afford the trips to the UK and the high end lawyers needed to argue a Privy Council matter.
And so on.
Looming over all of it is naked partisan political opportunism. In Saint Vincent and the Grenadines, the Constitutional reform process began with the support of the Opposition and the bipartisan agreement that the CCJ should be our final court. By referendum day, the opposition was arguing about Venezuelan allies, the condition of the road networks, and printing fake money with Prime Minister Ralph Gonsalves’ face in place of the Queen’s, telling people that their currency will be devalued. Recently, the New Democratic Party in Saint Vincent and the Grenadines, formerly pro-CCJ, reversed course and rejected Prime Ministerial latest overtures to embrace the court.
In Grenada, the National Democratic Congress (NDC) was pro-CCJ while in office, but anti-CCJ in opposition. So too Antigua’s United Progressive Party (UPP), which championed regional causes generally and the CCJ in particular, until they dissolved into a set of contradictory and nakedly political attacks, while simultaneously maintaining the lukewarm non-position that supporters should “vote their conscience.”
When Ralph Gonsalves championed Constitutional reform in 2009, opposition politicians criticized him for piling too many reforms into the referendum.
But when Gaston Browne pushed the single issue of the CCJ, he was told that it could not be accepted without a laundry list of other requests for reform.
Keith Mitchell, to his credit – and to his great frustration –tried it both ways: a multi-issue referendum in 2016 and a CCJ-only referendum in 2018. Both failed.
Indeed, it is fair to say that the main impediment to CCJ adoption in the Caribbean is not the ignorance of our electorate; it is the immaturity of our politicians. And that ain’t gonna change any time soon.
So, no. I’m not going to argue for the CCJ. Been there, done that, for the last 13+ years.
My message is different: We’ve tried referenda. We’ve failed. We’re a generation away from trying that method again. But there is another way. No matter how unpalatable that way may be, it’s the only realistic remaining option on the table for those who support the idea of Caribbean justice and independent Caribbean jurisprudence.
But first, some numbers:
Across four referenda in three different OECS countries, the pro-CCJ vote has been between 43 and 48 per cent. Jamaica’s 1961 referendum on continued membership in the West Indies Federation wasn’t about the CCJ, but it’s level of support – at 46% – places it in the same range of other failed Caribbean integration efforts.
(Don’t feel bad, Caribbean brothers and sisters. In the Brexit referendum – essentially a rerun of Jamaica’s 1961 federation referendum – the “remain” vote was only 47% in England. In 1999, when Australia held a referendum to break from the Queen and become a republic, only 45% agreed. Maybe it’s an island thing)
In Grenada and Antigua & Barbuda, referendum turnout was abysmal in comparison with elections of just a few months before. Voter turnouts in the referenda in Antigua and Grenada were 34% and 28% respectively, as compared to 2018 election turnout of 76% in Antigua and 74% in Grenada. Even in Saint Vincent and the Grenadines, where referendum turnout was a relatively robust 53%, that level of participation was still 10% and 10,500 votes shy those who came to the election one year later.
In Jamaica, the Federation referendum drew 100,000 fewer voters than the election that took place seven months later.
What does all of this mean?
It means that Caribbean people are far more likely to turn up for general elections than for referenda on constitutional reform. It means that, for 57 years, high-minded appeals to “Caribbeanness,” consciousness, the logic of integration and “breaking free of colonial bondage” have all foundered in the rough waters where principle and partisan politics intersect. It means that, after 15 years, no Caribbean country has managed to join the CCJ in its appellate capacity by way of referendum. The countries that appeal the to CCJ as those jurisdictions’ “apex court” – Barbados, Belize, Dominica and Guyana – all got there by way of legislative action, not referenda. It means that Antigua & Barbuda, Grenada and Saint Vincent and the Grenadines would have to increase their “pro-CCJ” referendum numbers by a whopping 20-plus percentage points to meet the 67% threshold required to replace the Privy Council.
Not gonna happen anytime soon.
But there is another way.
Caribbean politicians and CCJ advocates – myself included – have been seduced by the romance of “the people” breaking decisively with their former colonial masters and collectively deciding to throw off their remaining shackles and take up the mantle of self-determination. Our leaders – disproportionately lawyers with formalistic legal training – have dutifully read our constitutions, seen the 67% hurdle, and tilted unrealistically at the windmill of reform by referendum. Recent legal gymnastics – aimed at interpreting away the referendum requirement and placing reform before local parliamentarians – will be a difficult sell to electorates that have already rejected the CCJ in referenda.
But the focus on the romance of revolution or the requirements of referenda ignores the most fruitful potential avenue for removal of the Privy Council – sustained political advocacy to the Government of the United Kingdom.
In other words, the governments of the Caribbean should travel to UK, seek a meeting with Prime Minister Theresa May, and collectively request that the Privy Council stop hearing our appeals. Faced with such coordinated request, May – who is both looking to save money and gain friends in the UK’s post-Brexit reality – will no doubt come to realize that a Privy Council release would be a “win-win” for her, domestically and internationally. The Privy Council itself has already loudly expressed it’s desire to stop hearing our cases.
With the UK-assisted departure of the Privy Council, Caribbean states would be forced to select a new apex court. The CCJ would be the only game in town.
The idea of Caribbean leaders trekking to No. 10, hat in hand, to ask Miss Theresa to issue their free papers and let them off the plantation, will be anathema to the same heroic revolutionaries who conceived of and advanced the cause of a home-grown Caribbean court. But the revolution has failed. Our uprising was thwarted from within.
If the objective is noble, heroic failure, then we can wait another generation or two and try again; resolutely banging our head against the wall of referendum until it finally collapses, through inexorable attrition.
But if the objective is not heroism, but freedom, all we gotta do is ask. Politely, and with distasteful deference, we have to say:
Prime Minister May, you of all people know the difficulties of achieving policy objectives via referendum. How’s that Brexit thing going, by the way? Our countries inherited constitutions and institutions from the UK at our independence that are proving quite difficult to reform and remove.
You can help us.
Every year we burden British taxpayers with the cost of hearing scores of Caribbean cases This resources – human and monetary – are better spent charting a post-Brexit course for the British people. Various Privy Council lords have long hinted that it is time for us to stop loitering on colonial premises. We agree.
Plus, we’re wasting money. We’ve all already paid in full for this Court, but we’re not using it. I know how much you – and your friends in Europe and the USA – hate when we islanders spend money frivolously. Help us to be more responsible.
The countries of the Caribbean – mostly Commonwealth countries, and many of whom are realms of her majesty – would be highly grateful if you could facilitate our move to the CCJ by advising Her Majesty to terminate Privy Council ties with her realms. Our gratitude will no doubt translate to stronger ties and support as we move forward as mature allies in the post-Brexit era.
Thank you, and big up Elizabeth for us, please. We love her dearly.
We have experience with this path. No English-speaking Caribbean country reacquired their independence through revolution or referendum. Instead, we sent small delegations of politicians to the UK to negotiate the terms of our departure. If popular opinion was the basis for independence, there is a fair chance we would still be colonies. In SVG, future-prime Minister James Mitchell was a fierce opponent of independence, saying we were “safe as sardines” under British rule. In an opinion poll taken in Jamaica on its 50th anniversary of independence, a whopping 60% of Jamaicans said they would be better off as a colony. Back then, our leaders didn’t trust immature politicians to conflate independence with potholes, paycheques and propaganda in a referendum. Back then, our leaders led. They flexed their still-developing diplomatic muscles, traveled to the seat of colonial power, and skillfully negotiated the terms of our departure.
It would work again.
When May then throws open the plantation gate and allows us to cross the final threshold of colonial paternalism and step into freedom, it will matter little that our liberation was earned through obsequious submission instead of revolutionary exercise of the democratic franchise. It will not matter whether we threw them out or they threw us out. What will matter is that our countries would be free of the Privy Council, and free to build and mold a uniquely Caribbean jurisprudence, befitting our characteristics and our status as free and independent societies.
At this point, it’s the only way.