Fear of change
By Raffique Shah
April 29, 2012
News that the People's Partnership Government has made an about turn in accepting the Caribbean Court of Justice as the final appellate court has elicited positive responses from eminent jurists and legal practitioners as well as most rational-thinking citizens.
Has anyone noted, though, the stony silence from the ruling UNC's core support base? Two days after Prime Minister Kamla Persad-Bissessar made the announcement, there was no outpouring of support, no hosannas from the party faithful, no blog-drub that we have grown accustomed to seeing in the wake of any word that cometh from the mouth of the PM.
I should declare my position on the CCJ. When the court was an idea in the discussion stages in the 1980s and 1990s, I had serious reservations about it. At the time, powerful drug cartels wielded inordinate influence through brute force and mucho dinero not just in Colombia, but in much of the Caribbean, and especially in Trinidad and Tobago. In Colombia, judges and law enforcement officers were slain in spectacular fashion (much like what has happened recently in Mexico). Those who were not killed were seen as having been bought. Justice was tainted, or perceived to be compromised.
If that could happen in a country as big and as strong as Colombia, what of the tiny Caribbean islands where a few dollars or threats of assassination could have deadly consequences? I did not question the calibre of our jurists: I worried about their vulnerability. It was out of such fears that I opposed the CCJ at the time. I reasoned that the good Lords at the Privy Council were, through distance and the British security apparatus, insulated from the long reach of the Pablo Escobars and Dole Chadees.
But much has happened since to cause me to change my stance. Indeed, by the time the CCJ was established in 2001, I thought we should enlist. While there was still a thriving drugs mafia operating in the region, and while money laundering was still rampant, the law enforcement agencies had the upper hand in the continuing war. I felt then that our jurists could be trusted. Moreover, based on an agreement made during the tenure of Basdeo Panday's UNC administration, the CCJ headquarters were located in Trinidad and this country bore the lion's share of its cost.
So it was stupid for us to foot the bill but not make use of the court's instruments and facilities. Politics, however, being the dirty game it is, intervened. Out of power, the UNC questioned the independence and integrity of the very court it had promoted when it was in office. The party's supporters believed their leaders, who argued that local litigants, more so Indians, could be discriminated against—which was an outlandish charge. Hell, Caribbean jurists have served (and continue to serve) on some of the highest international courts. They are not infallible: no one is, not even the Privy councillors.
During the 2010 elections campaign, the Partnership's position on the CCJ was that it would be subject to a referendum. Now, instead of a plebiscite, it was a Cabinet decision to make the CCJ the final appellate court for criminal matters. Debate still rages over this halfway-acceptance of the court, and it seems, as the first president of the CCJ, Michael de la Bastide, argues, the government may have to go "the whole hog"—constitutional and civil matters included.
Reality is that if a referendum were held tomorrow on the issue of abandoning the Privy Council in favour of the CCJ, the vast majority of people would vote to keep the PC. There are two main reasons why they would go that route. First, only yesterday their leaders were expressing doubts about the integrity of the CCJ. Indeed, even as Government moves to adopt the court, it talks about a "trial period" in which, presumably, it would monitor the quality of justice meted out by the CCJ.
In my view, that's a stupid position. The court has functioned for a decade. While it has not heard, or ruled upon, a large number of cases, surely there are more than adequate judgments to evaluate its performance. In any event, who would do the evaluation in the "trial period"? This halfway step undermines people's confidence in the institution.
There is another, more fundamental reason why the majority of citizens would be sceptical about the court: people are afraid of change. For those of us who have lived long enough, we saw it since independence 50 years ago. The opposition DLP had fanned the flames of uncertainty that caused most Indo-Trinidadians to be afraid of this country breaking umbilical ties with Britain. Even as concessions were made at Marlborough House with respect to the composition and independence of institutions like the judiciary and service commissions, fears lingered. I dare add that those fears were not restricted to Indians, but they also haunted many Afro-Trinidadians and others who had known and trusted "de White man".
The second time such fear resurfaced was in 1976 when Dr Eric Williams moved to take Trinidad and Tobago to republican status, severing all direct political ties with Britain (we remained a member of the Commonwealth and retained the Privy Council). Mere mention of the word "republic" generated fears of chaos and confusion among many ordinary people. They had grown to associate "republic" with authoritarianism, with rule by the gun—or worse.
Fortunately, at that time, the main opposition parties did not exploit those unfounded fears. In moving to abolish the Privy Council as the final appellate court, we cannot afford to fan the flames of uncertainty, not where justice is concerned. We must be brimful of confidence.
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