Is Anti-CCJ Anxiety Justified?

Following, a STAR blogger’s reaction to Toni Nicholas’ article entitled CCJ: Must Politicians Always Decide For the People? (March 30, 2013):

“It is not that we prefer the Privy Council. The fact is that there is a perception that politicians and jurists are in bed together. Jurists must make a better and bigger effort to separate themselves from the politicians.”

To which I say, dream on, dear brother, dream on. For a start the debt-financed politicians and their highly paid lawyers now seeking constitutional change for the suspect purposes of the CCJ long ago dismissed dissenting citizens as “uneducated.”

They’ve also purposefully diagnosed as self-hate the perceived reluctance on the part of such citizens as would prefer to keep things just the way they are. From their hired-gun perspective proponents of the CCJ see dissenters as pathetic victims of an inferiority complex, brainwashed black folk convinced of their inability to achieve independent of “our former colonial masters.”

Somehow the demonstrated attitude reminds me of a loathsome time when plantation slaves reserved for their equally enslaved “house-nigger” brethren an intense hatred never directed at their masters.

The Privy Council is no more representative of our enslavement than are Government House and countless laws on our statute books evidently placed there indelibly by our “colonial masters.”

In truth, the Privy Counsel has demonstrated far more concern for justice in these parts than have our own elected members of parliament . . . but enough of that, for now.

Only last week one of the Kenny Anthony government’s favorite lawyers, Anthony Astaphan, in response to a reporter’s question, acknowledged “we have not been doing a good job educating the people of these countries and perhaps the worst political problem is that a lot of politicians, particularly those in opposition, are consistently making the CCJ a political football.” I couldn’t agree more!

Astaphan further admitted “there ought not to be but there is anxiety surrounding the CCJ. [Membership] has to be seen as part of our development and liberation . . .”

Liberation? From what? How presumptuous (some might say how arrogant!) of the senior counsel from Dominica to suggest Saint Lucia’s membership in the CCJ would be evidence of “our development.”

Does he mean to say we are at this point retarded, backward and not nearly as free as we imagine ourselves?

What a pity that Anthony Astaphan, evidently lead among the best lawyers of OECS, chose not to explain how CCJ membership translates into development and liberation, especially when the   reverse appears to be true: that dumping the Privy Council in favor of the CCJ—for the reasons given—would be further proof of how easily misled are the people of our abused region.

If given the opportunity to decide for ourselves we the people should choose to retain the Privy Council would that not be proof positive of our ability to think for
ourselves, at the very least?

If the people have developed to the point that they can be trusted to elect their parliamentary representatives, why then can’t they be trusted to determine for themselves their final court of appeal?

Astaphan might have done for our presumed underdeveloped populace a laudable service, had he bothered to identify the root cause of the “anxiety surrounding the CCJ,” which I dare to say has nothing whatsoever to do with ignorance or low self esteem. Indeed the acknowledged anxiety has nothing to do with the CCJ per se. What it has everything to do with is a hardly unreasonable lack of trust.

Indeed, the reason most often proffered for the cited anxiety centers on the people’s increasing distrust of politicians, a number of them lawyers—again not without cause. The obvious anxiety surrounding the CCJ has nothing to do with self-hate or an inferiority complex—or dependence on the white man. If it were so, how easy would be the task of selling them the CCJ as our court of last resort in place of the Privy Council. Most importantly, the CCJ is a proposition far less expensive!

“The interesting thing about all of this,” adds Astaphan, a front-line Labour Party campaigner in the last general elections, “is that the government of Stephenson King in 2010 felt that there was an error in the Constitution and had a Cabinet Conclusion seeking the guidance from the court on the proper interpretation and construction of the Constitution to decide whether or not the right to appeal to the Privy Council to abolish it requires a referendum or requires an agreement with the British government.”

The senior counsel is obviously at the top of his game. Small wonder that whenever Caribbean HOGs find themselves in need of legal representation his is the first BB they buzz—not the numbers of their respective attorneys general. Nevertheless, from reading his above-quoted statement it would appear Mr. Astaphan, notwithstanding his pope’s demeanor, is as fallible as the rest of us: his reference to our Constitution and the Privy Council, as stated, is unadulterated gibberish!

In any event, as I have written elsewhere, whatever interpretation might be given the section of the Saint Lucia Constitution now under Justice Pereira’s special scrutiny, good governance ought to be insisting—bearing in mind the admitted regional anxiety—that the question whether to join the CCJ be answered directly by we the people.

To settle the vital question at a session of parliament, where the government side unfailingly wins, would be to further spit on what passes in our region for democracy, while at the same time creating further distrust of regional politicians and their fat cat-lawyers, if not of parliament itself. Already things are bad enough in the state of Denmark!

It came as no surprise to hear from Astaphan following last week’s court hearing that politicians routinely hold a particular view while in office and quite another when in opposition.

So it was with Stephenson King who in 2009 said the CSA’s demand for more money “at the worst of times” was unconscionable, while the leader of the opposition in fire engine red fiddled like Nero from the steps of the Castries market.

So it is now, with the day’s CSA-plagued prime minister killing us softly with King’s 2009 song while King’s opposition guitar gently weeps.

The people have lost faith in most of our once revered institutions and professions. We should be bending over backwards to restore that lost faith. We should not be prospecting for reasons that can only justify and exacerbate the anxiety surrounding the CCJ.

If the judge should find herself in agreement with the government concerning a “typographical error in our Constitution,” what then would follow? Will governments henceforth be authorized merely to speak a few
empty words on the issue at a session of parliament, permit the opposition its turn, as is the custom, and then leave it to the Speaker to say the ayes have it—while the people look, shafted and helpless?

At one point during her presentation at last week’s court hearing, the judge appeared to challenge the lawyer for the opposition Petra Nelson when it seemed Nelson had suggested possible bias on the part of the CCJ.

Justice Pereira wondered aloud whether Ms Nelson was insinuating she might hold a particular view on the matter before her since was an ex-officio member of the CCJ. I don’t know about Ms Nelson but in her boots I certainly would’ve felt a lot more comfortable before a judge altogether disconnected from the CCJ!

At another time I propose to identify some of the reasons for the public anxiety underscored last week by Anthony Astaphan. As for the concerns of opponents of the CCJ, in particular their allegedly unfounded fear of political interference with the court’s affairs, please consider the possible implications of Article IV of the Constitution of the Caribbean Court of Justice:

“The appointment of the president shall be signified by letter under the hand of the chairman for the time being of the conference acting on the advice of the Heads of Government and the appointment of any other judge of the court shall be signified
by letter under the hand of the chairman of the commission.” [Commission meaning “the Regional Judicial and Legal Services Commission established by Article V.]

Don’t you just love the line, “acting on the advice of . . . ?” Kinda reminds me of the mighty governor general, whose every action constitutionally requires that she or he be “acting on the advice of the prime minister.” Except of course when the prime minister chooses to behave as if there were no such office as governor general—and takes upon himself whatever duties might normally be performed by the GG (if one existed) whether or not acting on the advice of the prime minister!