A TRIAD OF IDENTITY ISSUES:
The Enduring Cry for Freedom and Justice
By Patrick Robinson,
Justice at the International Court of Justice, Hague, The Netherlands.
I speak today not as a member of the International Court of Justice, and certainly not as an academic, nor even primarily as a lawyer. I speak as a proud citizen of a sovereign and independent country, Jamaica, in the hope that I can contribute to the resolution of certain issues from our colonial past that continue to haunt us.
I address three issues that go to the core of the question of the identity of the Jamaican people: the question of a claim for reparations for the enslavement of our ancestors, the replacement of the Monarchy by a Republican system of government and the replacement of the Privy Council by the Caribbean Court of Justice.
All States attach importance to their national identity; to how they see themselves and how they wish to be seen by others.[1] The late Rex Nettleford suggested that the search for national identity “may be said to inhere in a people’s desire to collate and codify their collective experiences as well as to lay foundations for the realization of future aspirations”.[2] The history of a country, its profile and aspirations will therefore shape its identity. National identity in Jamaica is influenced by its 307 year old history of British colonization and the even longer history of the enslavement of West Africans, from whom more than 92% of the present population is descended. Colonization and with it the colony-metropole relationship is bound to affect the question of national identity.
Generally, Jamaicans tend to shy away from a discussion of Jamaican history and national identity because it takes them back to the enslavement of their ancestors. But in my view many of the issues that face us would be more easily resolved if their consideration was influenced by a heightened sensitivity to the question of national identity. We should not allow the National Motto, “Out of Many, One People” to dull our interest in identity issues with its sweet-sounding, multi-racial aspirational message. Oneness or one-people-ness should not be allowed to suffocate blackness by overwhelming the pride we should feel in our heritage as a black people emancipated from enslavement. There is a major issue about the place of blackness in the Jamaican society.
Writing in the Observer of April, 15 2014 under the caption, “10 Things we should not be confused about”, Grace Virtue asserts that the statement: “Jamaica is a black country” is a fact with no value judgement attached. “Ambivalence about the statement arises”, she argues “because some of us attach a negative judgement to this statement….” The question is: Would Ms Virtue be rapped on the knuckles by the authors of the National Motto for this analysis?
I begin with a word or two to remind ourselves of the historical context in which questions relating to identity, reparations, the Monarchy, Republicanism and the Privy Council arise in Jamaica.
Jamaica’s relationship with England started in the period of republicanism that lasted in England for 11 years in the middle of the 17th century. In the English Civil War the Roundheads defeated the Royalists, King Charles I was beheaded, and the Republican Commonwealth and Protectorate commenced in 1649. Oliver Cromwell, a leading figure in the Republican movement that overthrew the Stuart Monarchy, became Head of State, with the title, Lord Protector. He ruled England from 1653 to 1658. When the Monarchy was restored in 1660 it was lex talionis as Cromwell’s body was disinterred by the Royalists and his head removed.
In 1655, Cromwell sent Admiral Penn and General Venables to take Hispaniola (now Haiti and the Dominican Republic) from the Spanish; they failed, but not wishing to disappoint Cromwell by returning empty-handed, they proceeded to nearby Jamaica, which was not well protected, and captured it from the Spanish, who had occupied the island from 1509.
The Spanish imported people captured, enslaved and shipped from Africa to replace the native Tainos, who were decimated by Spanish brutality and diseases. The English continued the trade in captured Africans to acquire labour, mainly to make prosperous their sugar plantations and to enrich even further, the plantocracy; and here I note that in 1774 the average white person in Jamaica was 52.3 times wealthier than the average white person in England and Wales. [3]
Born in bloodshed and sustained in bloodshed, the relationship between England and Jamaica was marked by atrocity upon atrocity against the enslaved. But they did not meekly accept their lot. There were many acts of resistance. In fact there were more enslaved-led resistance wars in Jamaica than in any other British colonial territory in that period, including what is now the United States of America. Additionally, the English had to contend with the Maroons, Africans who refused to be enslaved and fought the English from 1655 to 1739, when the English were forced to sue for peace and enter into a treaty granting them lands and some autonomy.
Sam Sharpe’s Emancipation War of 1831, in which over 500 enslaved rebels were killed, the Morant Bay Rebellion of 1865, in which over 400 persons were killed and the Labour Protests of 1938 in which 15 persons were killed, are the seminal events that stoked the furnace in which Jamaica’s independence was forged. Indeed, it was the 1831-32 Emancipation War that more than any other event led to the abolition of slavery in 1834, and full Emancipation in 1838. Although others assisted, notably the Baptist clergy in Jamaica and the abolitionists in England, emancipation from slavery was achieved by the struggle and courage of the enslaved men and women themselves. While the English gave the Caribbean enslavers 20 million English pounds as compensation for their loss, or almost £200 billion in today’s money[4], the newly freed people were given nothing materially and, for the most part, left to fend for themselves.
After slavery, Chinese and Indians were brought in as indentured labourers. The system of indentureship and post-emancipation employment and subsistence living produced their own horrors for the workers. Jamaicans received adult suffrage in 1944. In 1955, Jamaica was granted internal self-government. In 1957, Jamaica became part of the short-lived West Indies Federation, which was dissolved in 1962.
On 6th August 1962, Jamaica became an independent country with the Queen as the Head of Parliament and the Executive. But the Queen herself has no substantive role in the Government of Jamaica, where she is represented by the Governor-General. Therefore in one form or another, Jamaica has had a monarchical system of government from 1660 to the present time, and the enslavement of our ancestors by the British lasted for 183 years.
In 1833, the Judicial Committee of the Privy Council was established to hear appeals from the “plantations and colonies”. The Privy Council was, of course, the final appellate body not only for colonial Jamaica, but for Dominions in the Commonwealth. However, today the vast majority of Commonwealth countries have severed ties with the Privy Council, leaving a paltry few, regrettably including Jamaica, with that court as their final appellate body.
Marcus Garvey said “A People without the knowledge of their past history, origin and culture are like a tree without roots.” It seems to me that we have chosen not to remind ourselves of the origins of the great majority of Jamaicans; yet to proceed without acknowledgement of our past can only have negative implications for our national psyche and development as an independent country.
We must replace the Monarchy with a Republican form of Government, the Privy Council with the Caribbean Court of Justice and seek reparations from the U.K. for the enslavement of our ancestors. And when we shall have achieved these epochal milestones let us be clear about the event that was their trigger.
The struggle for freedom and independence did not begin in 1962 when we obtained Independence; nor did it begin in 1955 on the grant of Internal Self-Government; and it did not begin with the Labour Protests of 1938; nor with the Morant Bay Rebellion of 1865, nor with full Emancipation in 1838, nor with Sam Sharpe’s Emancipation War of 1831, nor even with the first big recorded revolt of the enslaved in 1684. No, it did not begin with any of those events, significant though each one was on the long journey to freedom and independence. As several historians, including Hilary Beckles and Verene Shepherd in Trading Souls set out clearly, that struggle started with the first cry for freedom by our oppressed ancestors from the south across the Atlantic. In other words, that first cry was not uttered in Jamaica; it was uttered on abduction in West Africa; it was uttered in the so-called slave castles of Ghana and Senegal and it was uttered all through the notorious Middle Passage that witnessed several attempts by the enslaved to free themselves and return to Africa. That cry could still be heard in 1684 after the first activist war; in 1831 after the Emancipation War led by Sam Sharpe; in 1838 after full Emancipation which extracted another £27 million in unpaid labour by our ancestors, (based on research done by Sir Hilary Beckles); in 1865, after the Morant Bay Rebellion, whose 150th anniversary we mark this year; in 1938 after the Labour Protests, in 1955 after Internal Self-Government and even in 1962 after Independence; and it is a cry for freedom that will not go away and die because it is a cry that will haunt us until we seize the plenitude of sovereignty and independence available to us by replacing the Monarchy with a Republic, the Privy Council with the CCJ and claim reparations to redress the wrong done to the ancestors of more than 92% of the population.
Let us not be diverted by those who, in advancing the facile argument that relinquishing these two symbols and claiming reparations ‘can’t put food on the table,’ say that there are more important social and economic issues to which Jamaica must attend. For the replacement of these ancient symbols and the making of this claim are issues that go to the identity and self-image of Jamaicans, and as such are anterior to and transcend all other issues; indeed they are a basic, fundamental issue in Jamaican society. We are not in an ‘either or’ situation. We underestimate Jamaicans if we believe that we cannot take the steps to relinquish these two symbols, make the claim, and at the same time adopt the measures necessary for our social and economic advancement. To do so would be to disconnect these issues from the legacies of colonialism that still haunt us; to do so would be to suggest that we too do not have a stake in the enlightenment project of rights, freedom and progress.
And so, the impetus to relinquish and replace the Monarchy and the Privy Council and to claim reparations is properly located in our ancestors’ primordial cry for freedom and justice. Without their determination and their sacrifice Jamaicans would not enjoy even an iota of the freedom that today we take for granted.
It is to be regretted that so many of my countrymen and women do not wish to have a conversation about our history and do not wish to be reminded that they are descended from enslaved Africans. National Hero Norman Manley – himself a product of the finest education available in the colonies and in England – had no such fears or inhibitions. He readily acknowledged “[springing from] the black masses”, and knew who his ancestors were. Why is it that, when following atrocities, others say “Lest we forget”, “We shall always remember” and Never again”, we say “Forget the past”. As recently as the 27th January there was a massive celebration in Poland of the Holocaust Memorial marking the 70th Anniversary of the Auschwitz Liberation. It is fitting that we should remember the Holocaust and, understandably, the Jewish people do not allow us to forget. But the barbaric, iniquitous and murderous transatlantic slavery is forgotten. Thankfully, on that same 27th of January on the other side of the Atlantic, in our own Jamaica, as a result of the activism of. M.P. Mr Mike Henry, there has now been a bi-partisan political decision in the Parliament of Jamaica that we have a right to ask the UK for reparations; thankfully we have a National Commission on Reparations led by Historian Prof Verene Shepherd that is engaged in public education on this very important matter.
The Claim for Reparations
Let us be clear, the transatlantic enslavement of African people is the greatest atrocity and example of people’s inhumanity to another people in the history of humankind. It was:
- striking for its duration of over 350 years;
- unmatched for its barbarity – demonstrated in the 18thcentury by the Englishman ‘Thomas Thistlewood, whose favourite punishment for the enslaved on his Jamaican plantation was to coerce one of the enslaved to defecate in the mouth of another, whose mouth was then gagged for about three hours;[5]
- unmatched for its sheer scale and magnitude, demonstrated, firstly, by the length of the pernicious triangular crossing from Great Britain to West Africa, then to the Caribbean, and to the Americas in the infamous Middle Passage (in which millions died) and back to Britain, a distance of over 12,000 miles;, secondly, by the number of persons enslaved – well over 15 million, according to Nigerian scholar Joseph Inikori;[6]and thirdly, by the number of those killed – over six million – a figure based on those who died on abduction, on the journey to the so called slave castles, in the Middle Passage and on the plantations.
- unmatched for its profitability-manifested in the fact that in 1774 the average white person in Jamaica was 52 times as wealthy as the average person in Britain and that the compensation money paid to the planters started a second industrial revolution in the UK after 1835.
In 2005 the U.N. General Assembly adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. These Principles were adopted without a vote and it is arguable that they reflect a rule of customary international law. Article 14 of the Principles provides that “an adequate, effective and prompt remedy for gross violations of international human rights law […] should include all available and appropriate international processes in which a person may have legal standing ……”
There must be a remedy for the grotesque wrong of transatlantic slavery. Why would anyone be surprised that a claim for compensation for the greatest crime against humanity in history would be made on behalf of its victims? And why should a country in which more than 92% of its population are descendants of those victims not have an interest in making such a claim?
Some Jamaicans will argue that the enslavement of our ancestors is ancient history and should be forgotten; it took place hundreds of years ago. But consider this. Our enslaved ancestors could not make the claim on their own behalf. As the property of their enslavers they were chattels with absolutely no legal status. And when they were finally emancipated they still could not make the claim. In fact, it is fair to say that in the entire colonial period between 1838 and 1962 the descendants of the enslaved in Jamaica were in no position to make a claim for reparations against Britain. The hardships faced by the black people of Jamaica in that period came to a head in the Morant Bay Rebellion of 1865 and the Labour Protests of 1938. Clearly, during the post emancipation colonial period the idea of the descendants of the enslaved or the colony of Jamaica making such a claim would be unrealistic. And so for us fifty years after Independence the claim for reparations is not stale; it is fresh. And so it is entirely appropriate that Jamaica, with more than 92% of its population the descendants of our enslaved ancestors, should at this time make the claim.
We owe our enslaved ancestors our freedom and we owe it to them to make the claim for reparations.
Of course some Jamaicans will say no to a claim for reparations. They will argue that to focus on reparation takes us back when we should be looking forward and that it is negative to look back. I note that we remember this aspect of our history once a year and if truth be told, there is little interest in the majoritarian black population in what we are celebrating. This attitude reflects the devaluation of blackness in Jamaican society and demonstrates how socialized .and brainwashed we have been into accepting not only that our history is not worthy of attention but also that the suffering endured and the benefit accrued to the enslavers is not our business.
The marginalization of blackness in Jamaica started with enslavement of the first West African by the Spanish, and continued apace by the British who achieved prosperity through the transatlantic slave trade. But what is depressing is that this devaluation of blackness has been galloping like a runaway horse in the fifty three years of independence.
Blackness has been marginalized by the National Motto “Out of many, one people.” While the idea of multiracial unity is commendable, in my opinion, it wasn’t necessary to reflect it in what is, perhaps, the most important symbol of national identity: The National Motto. For the past 53 years, we have sought to represent ourselves as one people, one Jamaica, as if our history began in 1962 and as if to focus on the blackness of the more than 90% of our population is to do a disservice to the identity of the entire country and how it is presented to the rest of the world. The Motto reflects the fear of the colonial plantocracy that the majoritarian enslaved would rise up against them. Yet, more important than oneness of the different races is mutual respect and love between them. And just as important as multiracial oneness is the oneness of the black majoritarian population. For absent that oneness, there can be no oneness of all the races. The thrust therefore, of my analysis is not divisive, but unifying.
And so, in my view, the promotion and empowerment of blackness – best exemplified by the advocacy of National Hero Marcus Garvey and the Rastafarians – has been retarded since Independence. Blackness is marginalized in many activities. There is a Miss Jamaica Beauty Contest which can never be won by a Jamaican woman with features typical of a Ghanaian or Nigerian woman. The majority of women in Jamaica have such features. What does such a discriminatory event do for the self worth of our women? And then we wonder why young women and men from the inner city indulge in the terribly shameful practice of skin bleaching. Of course, the beauty contest is not the only explanation of this very undesirable phenomenon. It is no answer to this criticism of the beauty contest to say that we are a multiracial society, and this is illustrated by the Motto, Out of Many, One People. The attitude to the Jamaican language, treating it and those who use it – the majoritarian black population – as inferior is another reflection of the devaluation of blackness. I immediately make it plain that my point is not that the English language should not be highly valued. It should be. But we must rid ourselves of the superior-inferior attitude. Jamaicans must be told the simple truth: they must master English because it has a significant economic value. It is the international language, if there is one. I have lived in the Netherlands for 16 years without speaking Dutch and can get away with this linguistic indolence because every Dutch man and woman speaks English. Disrespect of the Jamaican language reached its nadir some years ago when the Minister of Justice was reprimanded by the Speaker of the Senate for saying “Respec due” to the civil servants for accepting wage restraint. He was told that the Standing Orders required Standard English. The amazing aspect of this laughable incident is that not one member of the Senate rose to the defence of the Jamaican language, although every single one of them understood what the Minister was saying. The Standing Orders of both Houses should not be interpreted as prohibiting the use of the people’s language in the people’s Parliament. If they can’t be so interpreted, then they should be immediately amended. Respec due to the Jamaican language.
There is nothing novel about the claim for reparation, which is nothing more than a form of compensation or redress by a State for a wrong, though it is not confined to the payment of money.
In 1952 Germany paid Israel and the World Jewish Congress $65.2 Billion for atrocities committed during the Holocaust and for the resettlement of Jews. In 1988 the US paid $1.2 Billion to Japanese Americans who were interned in camps during the Second World War. In 2008 Italy paid $5 Billion to Libya for the colonial occupation of Libya. In 2013 Japan paid £230,000 to five South Koreans for forced labour during the Japanese occupation of South Korea. A good example of the kind of reparations being sought for our enslaved ancestors is the $170 Million paid by New Zealand in 1995 to the Maoris for land stolen from their ancestors by settlers in 1863. An apology was also made. In Australia, the government has apologized for the treatment of Aborigines after an official enquiry called it genocide. Compensation is being negotiated.
The rare show of bipartisanship by the Jamaican Parliament on this matter is very welcome. No Jamaican need be embarrassed about the claim. Every Jamaican should support the claim, and to complement the splendid work by the National Commission on Reparations, schools, churches and community groups should educate their students and members about its significance.
The Monarchy
Of course, there is a connection between the attitude to blackness, the Motto, the issue of reparations, and the attitude to other colonial legacies to which too many appear to be attached. Two of these are the monarchical system and the Privy Council, and I address these in more detail now, starting with the Monarchy.
A monarchical system of government is one in which the Head of State inherits power – birth is the criterion for assuming a position in governance. A monarchical system of government is inherently undemocratic, since the will of the people has no influence on the process by which the Monarch, as Head of State, is appointed. I concede that some monarchies have, over time, become very popular with their subjects and enjoy widespread support. For the popularity of the U.K. Monarchy, we need look no further than the ardent public participation in that country in the celebration of the Queen’s Jubilee in 2012. Indeed, many Jamaicans also admire the Queen. However, let us separate the two issues and admit that in an age where so much stress has been placed after the Second World War on democratic values as the best guarantee for good governance, a monarchical system would not qualify as the model to follow in modern statehood.
Apart from the principled objection to a monarchical system of government, there is another reason why the present monarchical system is inappropriate for Jamaica: Jamaica is a post-oppression society and its people should not be asked to have as its Head of State a person who symbolizes the oppression inflicted on their enslaved and other ancestors.
By far the worst relic of enslavement, indenture ship and colonialism is that they have left Jamaicans with a muddled sense of their identity. Colonisation has left ingrained in the psyche of Jamaicans the feeling that they are not good enough, that what they look like is not good enough and that what is foreign, especially if it is white, English, European or American is better.
Don’t underestimate the importance of symbols, especially in a country with a history like Jamaica’s, and one as young as Jamaica is. In Jamaica the symbols at the apex of the political and judicial systems are all wrong. The Monarchy and the Privy Council, comprised of foreigners, ignorant of Jamaican culture, living thousands of miles away, many of whom have never set foot in Jamaica, and who have precious little in common with the Jamaican people, are an anachronism that Jamaicans should not be asked to endure any longer. It is no more acceptable for a foreigner, or if you prefer, a non-citizen of Jamaica, to be the Head of State of Jamaica than it would be today for the Head of State of France or the Head of State of Germany to be the Head of State of the United Kingdom. In fact, the situation in which a foreigner and the symbol of the oppression of our ancestors is the sovereign Head of State of Jamaica would be deliriously risible were it not so tragic. Certainly, countries such as the USA, France, Germany, Israel and the United Kingdom itself would not in this day and age tolerate a parallel situation. Why, then, 53 years after Independence, does Jamaica?
Jamaica should have a productive relationship with the United Kingdom, and Jamaica can have such a relationship with the United Kingdom – I note that more than half a million Jamaicans and their descendants make the U.K. their home – but it should not be one in which the British Monarch is Jamaica’s Head of State. When Jamaica becomes a republic, it would, like its Caribbean sisters Trinidad and Tobago, Guyana, and Dominica, remain within the Commonwealth. As a Republic within the Commonwealth, Jamaica and the United Kingdom will continue to develop their relationship for their mutual benefit.
The benefit usually associated with the Monarchy is the perceived stability and certainty that it is said to provide: the Monarchy remains while governments change. It is not clear to me that if Jamaica has enjoyed political stability in the last 50 years – and a fair comment must be that it has – that this can be attributed to the British Monarchy. There is no reason to believe that the current level of political stability in Jamaica would not continue under a republican system of government.
For the Monarchy to be abolished, in addition to the observance of other procedures, the Jamaican Constitution requires a two-thirds majority of both Houses of Parliament approving the relevant law and an affirmative outcome of a referendum. But there are many symbols that can be removed without going through those procedures. I give two examples. The nomenclature “Throne Speech” could and should be changed. I commend M.P. Mr Raymond Pryce for his initiative in this regard some years ago. For the new name, I suggest “The Marcus Garvey Policy Statement”; for “Queen’s Counsel”, I suggest, “Norman Manley Distinguished Counsel” (NMDC). By those changes we honour two National Heroes.
The U.K. Privy Council
I now turn to the other colonial relic, the U.K. Privy Council. The time has also come to relinquish ties with the Privy Council. Yet there are some of us in Jamaica who oppose such a move. The explanation for this opposition is the feeling that we are not good enough and cannot be depended on to be just and fair and deliver justice in the way that an English court can. The modern media, particularly television and film, contributes to the negative image that Jamaicans have of themselves; our own misdeeds help to explain the lack of confidence Jamaicans have in their institutions. But, by far the most potent explanation of the mistrust of, and lack of confidence in, each other is the 307 year British colonial experience.
If it were true that Jamaica is a nation of incompetents and dullards, then anyone who proclaimed the stellar achievements of Jamaicans like Marcus Garvey, Norman Manley, T.P. Lecky, Una Marson, Mary Seacole and Bob Marley, would be guilty of a scandalous falsehood. Self reliance and indigenization have resulted in Jamaica being a globally recognized centre of excellence in athletics. If Jamaica is independent and sovereign in sports, in music, in education, and in making decisions in every other facet of national life, including its legislative and executive functions, why shouldn’t Jamaica also be independent in its judicial function?
Jamaica and the Caribbean have always produced lawyers of the highest calibre – Norman Manley of Jamaica, is an example, and so too Hugh Wooding of Trinidad and Tobago. It wasn’t surprising, therefore, that the Federal Court of Appeal, that was in existence for five years from 1957-1962, functioned at the highest level of professionalism, producing judgements of the highest quality.
The lawyers and Judges in Jamaica and the Caribbean are well equipped to serve in a final appellate body. However, if the U.K. is to be the benchmark for excellence in the dispensation of justice here are some reassuring facts. In the research done the discovery that would perhaps most startle those who berate Jamaican judges is something that I have instinctively known all along: in terms of reversals of their decisions Jamaican judges compare favourably to their UK counterparts. The percentage of appeals allowed by the Privy Council from decisions of the Jamaican Court of Appeal is roughly the same as it is for appeals allowed by the House of Lords – replaced in 2009 by the UK Supreme Court – from decisions of the UK Court of Appeal – between 30% and 40%. Jamaican judges would therefore seem to be as good, or if you wish, as bad as the UK judges. The comparison is apt since the Privy Council is comprised of judges drawn from the UK Supreme Court – formerly the Law Lords in the House of Lords.
Moreover, the Privy Council is not accessible to the vast majority of Jamaicans. The right to appeal to the Privy Council is illusory since Jamaicans cannot afford the 5,000 mile trek for justice. Consequently, only a few persons utilise that court; in effect, only those who are relatively well off and those accused of murder who receive pro bonohelp from English lawyers. As one commentator has put it: it is only the wealthy and the wicked who go to the Privy Council.
There is another cogent reason for leaving the Privy Council. Like the tardy guest, Jamaica has overstayed its welcome. It is clear that Jamaica and the other countries still tied to the Privy Council are not wanted and if they had any pride and self-respect they would leave. In 2009, Lord Phillips, former President of the UK Supreme Court, complained that his judges had to spend too much time on cases from the Commonwealth – 40% of their working hours. He said that Caribbean countries should utilize the CCJ and that “in an ideal world” former Commonwealth countries would stop using the Privy Council and set up their own final courts of appeal. After that classic put down, you would have to wonder why any self-respecting Caribbean country, why any country with ancestors such as National Hero Marcus Garvey, who preached self-reliance for the upliftment of the black race, would not have immediately set in motion the process to sever ties with the Privy Council and have its own final appellate body. For Kwame Nkrumah was right when he said “it is far better to be free to govern or misgovern yourself than to be governed by anybody else”.
In the light of Lord Philipps’ comment in 2009 about his judges being obliged to spend so much of their time on Commonwealth cases, it is more than passing strange that, with no increase in the membership of the Privy Council, we were reassured a few weeks ago that the Council has always had a feature somewhat akin to an itinerant capability that it would be willing to consider activating, 1) if it were invited by the Chief Justice and the Government, 2) if there was enough work, and 3) if their expenses were met. This is a very iffy and uncertain arrangement.
Moreover, we recall that Lord Phillips had earlier said that he was considering using UK Court of Appeal judges to cope with the heavy workload resulting from Commonwealth cases, as he saw no reason why some Privy Council cases had to be heard by five of the U.K.’s most senior Judges. We can only hope and pray that, whether in London or the Caribbean, U.K. Court of Appeal Judges will never be used to determine appeals from our Court of Appeal. You see what a low pass we have come to when the former President of the Supreme Court, Lord Phillips, can contemplate appeals from our Court of Appeal being heard by U.K. Court of Appeal Judges – judges whose jurisdiction would be coordinate with, and not superior to, that of our Court of Appeal judges – when the Jamaican Constitution does not envisage such a possibility. But as we well know in Jamaica, people will continue to tek step with you when you don’t assert yourself and “stand up for your rights,” as Peter Tosh said.
More important, has the Council, despite its protestation to the contrary, now become a fully fledged party to the domestic dispute about its survival?
The outsourcing by a country of what is after all a major segment of its sovereignty i.e. its final judicial function, is inconsistent with modern trends. Even in times of turmoil and conflict countries seek to hold on to and resist the parcelling out of their judicial functions to an external or foreign body. The best example of this is the Rome Statute of the International Criminal Court (ICC). The 122 States Parties insist on the principle that the only circumstance in which their national judicial functions are to be taken over by the ICC is when they are unable or unwilling to exercise jurisdiction. Another example of the modern trend is the principle of subsidiarity in the operation of the European Convention on Human rights and the European Court of Human Rights. This principle recognizes that the machinery for the protection of human rights established by the Convention is subsidiary to the national system safeguarding human rights.
The question, then, is why do we in Jamaica continue to cede such an important aspect of our sovereignty to a foreign body, the U.K. Privy Council, when we have the Caribbean Court of Justice, perfectly willing and able to perform the final appellate functions for us: And in anticipation of the argument that the Privy Council is not a foreign court, let me say that both on the basis of principle as well as for all practical purposes, the Privy Council is a foreign body. It was established by an Act of the U.K. Parliament which can at any time, even today, repeal that Act and leave Jamaica without a final appellate body. And, it remains a foreign body notwithstanding the occasional, tokenistic inclusion of a Commonwealth Judge on its Bench.
Let me say a little about the court that I have identified to replace the Privy Council. The Caribbean Court of Justice was established by an Agreement between countries in the Caribbean Community (CARICOM) in 2001. The CCJ has two jurisdictions. In its original jurisdiction it hears cases that arise from the interpretation and application of the CARICOM Treaty – these are mainly trade and integration-related disputes. The original jurisdiction binds all CARICOM states. In its appellate jurisdiction it hears appeals from decisions of the courts of appeal of CARICOM states. The Agreement allows a state to enter a reservation in respect of this jurisdiction which will replace appeals to the Privy Council. So far four countries, Barbados, Guyana, Belize and the Commonwealth of Dominica have accepted the CCJ’s appellate jurisdiction.
Bearing in mind that up to 2010 there were only two countries that had accepted the CCJ’s appellate jurisdiction, one would have to say that it has done very well in terms of the number of cases filed and disposed of; there have been a total of 160 cases filed in its appellate jurisdiction, of which 140 have been adjudicated. 10 cases have been filed under the Court’s original jurisdiction, and 9 disposed of. Compared to those figures, the European Court of Human Rights only heard 10 cases in its first 10 years, but it now has over 130,000 cases filed. All new courts take time to build up a volume of work. My own Tribunal, The International Criminal Tribunal for the former Yugoslavia, was established in 1993, but did not hear its first case until 1995.
But why a Caribbean court and not a Jamaican court, as our final appellate body? There is no denying that Jamaica shares with CARICOM members a common history of colonialism,
enslavement, struggle, freedom and independence; and that common history makes them part of us, and us part of them. Moreover, the path to the CCJ and a Caribbean jurisprudence has been prepared by the common legal training provided to Caribbean students over the past 45 years under the auspices of the UWI’s Faculty of Law and the Council of Legal Education. This training is superior to the training received by Jamaicans who studied law in the UK. It is a training that has produced lawyers of the highest quality as well as eminent judges, many of whom have become Chief Justices. As good as a final Jamaican appellate body would be, a final appellate body with judges from our sister Caribbean countries and Jamaica, would, by reason of the deeper pool to draw from, be better and stronger, and better serve Jamaica’s national interests. The CCJ has in its relatively short life, earned a reputation for its excellent judgements, its accessibility, transparency and efficiency in the delivering of justice. Recently, the Global Arbitration Review, the world’s leading international arbitration law journal, recognized the Court’s judgement in British Caribbean Bank vs the A.G. of Belize as the most important published decision for 2014.
Both the method of selecting the Court’s Judges and its funding have come in for praise from a group of scholars who examined the process for selecting international judges. They found that the Regional Judicial and Legal Services Commission (RJLSC) was the only non-State election body at the international level, and that the independence of the CCJ’s Judges was better preserved through selection by such a body than by governments.[7]
They also found unique the Court’s funding by a Trust Fund based on funds originally borrowed on the international market by the Caribbean Development Bank, to be repaid by the governments. “This means”, the authors say, “that neither the court nor the R.J.L.S.C. is dependent on contributions from the member states and this has contributed significantly to the perceived and actual independence of the court and its selection procedures”. Their commendation of the CCJ is completed with the suggestion that other election based courts would benefit from adopting this funding procedure. Jamaica has already invested $20 Million (US) in the Court and can ill afford not to derive the benefits of this expenditure.
It is surprising that in light of this objectively rendered and unsolicited praise of the CCJ’s selection process, some of my compatriots have found it possible to criticize the court in relation to the selection and non selection of Jamaicans as Judges. There is a Jamaican on the Court in the person of Professor Winston Anderson. An academic with a PhD in International Law from Cambridge University and a former Legal Advisor to CARICOM, Dr. Anderson is a highly qualified international lawyer who fills one of at least two places on the Court, reserved by the Agreement establishing the CCJ for persons with expertise in international law. But even if there were no Jamaican on the Court, we need to be very careful about complaints of bias against Jamaicans. At any particular time in the CCJ’s life there will be unequal representation from CARICOM countries. We can comfort ourselves with the thought that eminent commentators have found the CCJ’s selection system to be uniquely commendable in the universe of international courts. It is noteworthy that the RJLSC has as its Vice-Chairman, Dr. Lloyd Barnett, a Jamaican and a well known and very distinguished constitutional lawyer.
It is amazing that some persons cannot see the difference between a Jamaican having to travel to the U.K. to litigate a case before the Privy Council or for some other purpose and another Jamaican going to Trinidad and Tobago for the same purposes. In the first situation the Jamaican will need a visa and if he lands in Britain without a visa, he will be sent back to Jamaica, and more important, he has no legal basis for any action against the U.K. If you need a visa to have your rights vindicated before your supposedly final Court of Appeal, and this is at the behest of a foreign Sovereign, then that right juridically and functionally is gravely compromised or non-existent. In the second situation he needs no visa for entry into Trinidad and Tobago and if he is denied entry into that country, he can file an action before the CCJ on the basis that his right to freedom of movement within CARICOM has been breached. In the Shanique Myrie case, the CCJ in its illuminating decision clarified that the right to free movement was subject only to the receiving state’s right to deny entry if it is able to show that the Jamaican would be a charge on the public purse or falls within a restrictively determined class of undesirable persons.
In any event, the Jamaican would not have to travel to Trinidad and Tobago to litigate his case since the CCJ is, unlike the Privy Council, an itinerant court that will travel to the litigant’s country without having to be invited by the Government and the Chief Justice.
Moreover, the right to free movement is not unqualified. Even in the European Union, a body with deeper integration than CARICOM, that right “is subject to limitations justified on grounds of public policy, public security or public health” – Article 45(3) of the Treaty on the Functioning of the European Union.
Fifty three years after independence, the best gift to Jamaica would be a categoric and unequivocal decision to sever ties with those two symbols that are inappropriate for the country: the replacement of the Monarchy with a republican system of government – ironically, the system that prevailed in England in the first period of its relationship with our country – and the replacement of the Privy Council with the CCJ. In adopting those measures we will be following the example of another island state: Singapore (the country that is most frequently cited by Jamaicans as worthy of emulation for its growth and development) was a colony of the UK for about a century and a half, became an independent republic within the Commonwealth in 1965 and abolished all appeals to the Privy Council in 1994.
We are of course pleased that the Court delivers excellent judgements, works speedily, is fair in its dispensation of justice, and is more accessible than the Privy Council. However, the main basis for replacing the Privy Council with the CCJ is that it represents the most efficacious way to express our sovereignty and identity in order to serve Jamaica’s interests.
The law to replace the Privy Council with the CCJ must be passed by a two-thirds majority of both Houses of Parliament – the House of Representatives and the Senate; anything further is not only supererogatory, but may even be dangerous.
Conclusion
So strong is the sentiment against looking back into our history that if we continue along this trajectory, it would not surprise me to find that fifty years from today it will be considered offensive or a sign of ill-breeding to say anything about the enslavement of our ancestors or anything relating to Africa and blackness. One way of eradicating this pathology of national schizophrenia in relation to who we are and how we wish to be perceived as a people is to educate ourselves, beginning with the young, about our history. Jamaican and Caribbean history should be compulsory in the first five years of secondary school, with students required to write an examination on the subject in the CSEC – Garvey for breakfast, Garvey for lunch and Garvey for dinner.
Republican status is the natural and logical culmination of the process that began with the first cry for freedom by our oppressed ancestors and was continued by their full Emancipation in 1838 and the attainment of Independence in 1962. Indeed, I maintain that Republican status in 1962 would have been more consistent with the linear progression that marked the movement to full independence than the Monarchical system that is deeply entrenched in the Constitution. Certainly, that is what Jamaica’s most popular national Hero, Marcus Garvey, would have desired. After 53 years we are still struggling to find the courage to remove these last relics of colonization. Replacing the two symbols and making the claim for reparations is about acknowledging the struggle of our ancestors – Tacky and Nanny of the Maroons; Sam Sharpe and Eliza Whittingham; Paul Bogle, Elizabeth Taylor and George William Gordon; Marcus Garvey, Aggie Bernard, St. William Grant; Alexander Bustamante and Norman Manley – we say to them: you did not struggle in vain; it will be the final vindication of their struggle; fail to relinquish and replace those ties, fail to make the claim for reparations, and we fail them; not to grasp the plenitude of sovereignty and independence available to us would be an abnegation and a grave betrayal of their hopes and aspirations.
But, even as it is right that we recognise and acknowledge the struggle of our ancestors, it is imperative that we should not allow ourselves to be weighed down by certain aspects of that history. Our past must not become an albatross around our necks; we should be inspired and buoyed by the courage of our ancestors and use their spirit to transport us to greater heights of achievement. Relinquishing and replacing the ties is also about saying to our ancestors, “we are ready and able to complete the journey you started centuries ago”. To borrow the wonderfully expressive phrase from the Jamaican language used by Prime Minister Portia Simpson-Miller: “time come”.
But symbols are not an end in themselves; they are only a vehicle to take us where we want to go. Jamaicans must make Jamaica work. Our enslaved and other ancestors initiated the process that led to political independence. They would want us to achieve economic independence or as much of that as is attainable in our interrelated and globalized world. Mindful of Norman Manley’s charge to this generation “to reconstruct the social and economic society and life of Jamaica”, the best way to memorialise and celebrate the struggle of our ancestors – who, make no mistake about it, are responsible for the freedom and independence we have today – is for Jamaicans to work hard to ensure that our country experiences real growth and development – time come for that too.
[1] Mirror, Mirror. Identity, Race and Protest in Jamaica – Collins, Sangster 1970 p.19.
[2] Ibid.
[3] Trevor Burnard, Mastery, Tyranny and Desire: Thomas Thistlewood and His Slaves in the Anglo Jamaica World, p 15 – The Press U.W.I. 2004.
[4] Nick Draper in The Price of Emancipation (Cambridge 2010) pp.106-107, as cited in Hilary Beckles, Britain’s Black Debt, p 144, para.3.
[5] Supra Footnote 3, p 104.
[6] Joseph Inikori, Measuring the Atlantic Slave Trade; An Assessment of Curtin and Antsy, Journal of African History, 17 No 2 1976, pp 197-223.
[7] Selecting International Judges; Principle, Process and Politics, Ruth Mackenzie, Kate Malleson, Penny Martin and Philippe Sands – Oxford University Press p 147.
