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THE CCJ CANNOT LIBERATE US By Alvette Ellorton Jeffers

posted 16 Nov 2018, 05:34 by Gerry Kangalee   [ updated 16 Nov 2018, 06:11 ]

(Note. Antigua and Barbuda and the island of Grenada both held Referendums to approve or disapprove the changing of their respective Constitution to allow for the Caribbean Court of Justice to replace the Privy Council as its apex court on the same day. The No votes won. This article was penned days before the November 6th Referendum and the ideas contained in the article below may still have currency.)

In an address made in 2016 to a Trinidadian audience made up primarily of lawyers and intellectuals, Professor Richard Drayton posed several questions to his audience, which have not been repeated by Antiguans who are advocating for the Caribbean Court of Justice (CCJ).

Antigua’s intellectuals wax eloquently on ancillary matters, like cost and the qualification of judges. Not Professor Drayton. He realizes the issues are more complex and deserve serious contemplation. Pay attention to the questions he raises in a speech entitled, “Whose Constitution? Law Justice and History In The Caribbean.”

Image result for TRINIDAD hall of justice“…to what extent should Caribbean judges guide the interpretation of statutes towards the needs of present and future justice? How far, more generally, should the judge view her or himself as a maker of history? …How can we preserve the authority of the law while turning consent into the centre of our jurisprudence?" 

It is obvious that the good Professor is deeply worried and for good reasons. There are two considerations here. One is subjective. The other is the law. Do the justices think of themselves as makers of history or enforcers of orthodoxy? And does the law allow for interpretations despite the law’s specific intentions?

By extension: Does the law even permit the justices to be makers of history or the enforcers of orthodoxy? Is there a midpoint between the two extremes? And should we bet our future on this legal and philosophical quandary? I don’t think so and neither does Chief Justice Archie who attended the lecture given by Professor Drayton. Pay close attention to what he says. He is no ordinary bystander. He is a Chief Justice in Trinidad. Listen to him.

“…until we have a constitutional and legislative framework that empowers us, then it is very difficult for judiciaries on their own to shoulder that burden of transformation.” Read it again.

Now what is the Chief Justice saying? I think he is saying that he is not willing to take undue liberties. He is not arrogant at all. He needs the assistance of the people and their representatives to guide him. They must present to him the legal authority so that he can feel safe to venture into new fields where hitherto, he did not belong.

Everyone should know, especially the “anti-colonialist,” that our jurisprudence does not encourage laws that advance, unambiguously, international standards of human rights. Our idea of justice has never been clearly defined and decided upon collectively. We have been hobbling along. Our law does not encourage the people to demand, independent of Parliament, new expressions of democratic practices.

I will contend that the Antigua Constitution is more protective of the State than it is of the people because it wants no uncertainty as to
Image result for TRINIDAD OPENING LAW TERM where power is concentrated. It is the only body permitted to be violent. In truth and in fact, the Constitution allows the State very wide latitude when it has need to intervene in our lives. And when policies are implemented that are disadvantageous to sections of the society no immediate relief is possible. Litigation takes time and the competition is stiff especially when you are battling a government whose ministers do not have to pay to litigate.

I know some of you do not have the patience for this type of discourse because you are still in an imaginary fight with “colonialism.” You are in a hurry to make history. But you will be making an unpardonable error if you do not take into consideration both the legal and social milieu into which the CCJ will be plunged. You will do the justices no favor if you set them adrift. They need and are asking for a compass.

As Chief Justice Archie says they need guidance because the law is never neutral. Take it from Justice Holmes. He knows about this stuff because he sat on the U.S. Supreme Court between 1920-30s. You must be patient. Take your time and read slowly because he is telling us about the influences that go into making the law and if I may add also, interpreting the law. I read it several times. Here goes Justice Holmes, quoted from the book: ‘The Value of Justice’ page 89-90.

“The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good more to do than the syllogism (deductible reasoning) in determining the rules by which men should be governed. The law embodies the story of a nation through many centuries.” This is crucial and must be part of any discussion about the CCJ

What is put into the law is what we are going to get out it. Not much more. For as Justice Holmes noted, judges are not free of the class conflicts going on around them and even though they may try to insulate themselves against the encircling cultural wars, the law may not save them because it may just be the law that is the source of those wars. For the justices to survive, they may have to rely on an ingenuity that borders too close to a violation of their juridical responsibilities which would be any attempt at rewriting the law.

What do I draw from Justice Archie and Justice Holmes? The CCJ cannot liberate us. It is the Caribbean islands individually and collectively, which must invent new notions of jurisprudence out of which the law will flow to cement the system of justice by which we agree to live. But that system of justice cannot be in tension with the way we cultivate our social and cultural life. Justice, ultimately, is a lived experience and if the foundation of society is formed on accepted assumptions of inequality, exploitation, lack of empathy and authoritarianism, the justice we expect to have will be stillborn.

Know one thing for sure; the CCJ is not the beginning of a new society. With or without it, ours will remain a society waiting to experience a rebirth. Ours is the task to make that a reality and only then will "justice roll down like mighty waters.”
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