May I Approach The Bench?

OBJECTION SUSTAINED

Dr. Lester CN Simon

Whenever you hear West Indians object to the Caribbean Court of Justice (CCJ) becoming our final court of appeal because it will be influenced by politicians, you must laugh. Laugh out loudly and hysterically, pointing a finger at them (at a distance), as if mocking them.

In an attempt to escape from history, including our West Indian history, and probably because we have had so much English history shoved down our throats, we sometimes forget or disregard the struggle the English endured to get where they are today. We neglect our own noble struggles and confuse our sterling contribution to English history with that made by the English themselves. And hence we assume we can just latch on to England forever and ever without embarking on our own path or reconnecting to our own history to evolve a modern state. This is as true for agriculture as it is true for the CCJ.

Our eminent lawyers and historians should tell us that what we call the Privy Council is really a committee of the Privy Council and that we are really referring to The Judicial Committee of the Privy Council. Moreover, they should tell us that the practice of politics interfering in law was the genesis of the King’s Council which gave way to the Privy Council, a body through which some monarchs used to rule without turning to Parliament. The word "privy" means "private" or "secret". The ancient Privy Council was originally a committee of the monarch's closest advisors.

The historical struggle from the primal and ancient Privy Council in the Middle Ages to the highly regarded Judicial Committee of the Privy Council formed in 1833 and modified over the ages even up to today, must be underscored, including its recent relocation from Downing Street to the new UK Supreme Court building this very month.

The history of courts is crucial because it is that very West Indian history that is fuelling the objection to the CCJ. This is a crucial debate for all West Indians because it throws up a very important and fundamental question. When we seek justice between each other, between ourselves and institutions or against the powerful, rich or famous, we can go to court. What then do we do when we seek justice against the court or what do we do when the court’s procedure, proceedings and verdict are clearly, self-evidently and simply not fair?

The matter of the acceptance of the CCJ is historically, fundamentally and inescapably tied to our relationship to everyday law and order. It is not just whether we think the process or the verdict of any court is right. It has to do with that long arm of the law that is so far removed from society, it seems to be, and we have grown accustomed to it being, not of us but other worldly or alien.

This is not just a layperson’s view. The appeal judge’s judgment in The Observer case spoke of The Observer group knocking and disturbing “the sanctity of the constitutional door”. Our Constitution is the supreme law of Antigua and Barbuda. It was the Judicial Committee of the Privy Council that rebuked the appeal judge and proclaimed that, “With respect, the image of the Constitution as secluded behind closed doors is not one which their Lordships adopt. Nor would it be right to think of the Constitution as if it were aloof or, in the famous phrase of Holmes J., “a brooding omnipresence in the sky.”

Antiguan and Barbudans might add that our Constitution, sacred as it is, must be like the Antigua Recreation Grounds, or much less encumbered and away from a prison and a roundabout, like that area between the former Parliament building and East Country Pond.

We must engage our parliamentary representatives concerning matters of law and order and the courts. Without resorting to mod rule, civil society must hold its feet to the fire of the pavement when it is displeased with the law and the courts and peacefully protest by marching, and marching again, if necessary. How could we have stood and sat idly by when our lower courts were long in waiting for renovation and for proper toilet facilities. Surely, if a magistrate cannot pass a good motion in peace and quiet on the seat, how can proper judgment be passed on the bench? Shucks!

The legal (and the medical) professions have a lot of work to do. Professional bodies in capitalist and especially developing societies are predicated on the basis that they give back to society some of what they have earned and what society originally gave to their members. This is not just in the form of pro bono cases. It demands establishing an umbilical connection with society, very early and naturally in our professional careers (we might get a peak named after us). This community engagement should not just be during our twilight years, when we can wax eloquently and comfortably about all the rights and wrongs, and suggest all the answers.

In the absence of this umbilical nurturing between law and society, there is no need for a politician to influence judges, the influence is already nurtured. A well known and paradoxical parallel here, is the case where a drug don simply has to wish someone dead, and one of his subjects, wishing and thinking like the boss, does the job without being asked. Remember those dark days when we were sick because Massa was sick?

Most of us laypersons see our constitution the very same way our appeal judge saw it; as “a brooding omnipresence in the sky”. That’s the nurturing the legal profession has planted, cultivated and reaped. And then we talk about law and order?

So we can talk about the independence of the CCJ until the court comes home. It will never really work until simple law and order and the police engage society and civil society engages the police and the lower courts. Then the path to justice will not be “a brooding omnipresence in the sky”, but a constitutive, enveloping part of us, that will naturally lead to this correct and inalienable response to the CCJ: Objection overruled.