Reading Text and Polity: The Case for a Caribbean Supreme Court

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 264-349

Chapter 3

Reading Text and Polity:The Case

for a Caribbean Supreme Court

These Caribbean territories are not like those in Africa, with

their own internal references that have been returned to them-

selves after a period of colonial rule. They are manufactured

societies, labour camps and creations of empire and for long

they are dependent on empire for law, language, institutions,

culture, even officials. Nothing [is] generated locally, depend-

ence [has become] a habit. – V.S. Naipaul

Our Constitution came from Britain, but a dozen generations

of Barbadians have made it their own. – Sir Hugh Springer

West Indian Independence Constitutionsare among the central cul-

tural artifacts of our nation. Unfortunately, they are largely of

colonial origin, and are not the products of our own deliberative

efforts. Rather, as the Instrumentsmarking the ‘birth’ of the inde-

pendent sovereign States of the Commonwealth Caribbean, they

were made in pursuance of a legal authority residing in the Brit-

ish Imperial Parliament. In addition, they have never received

ratification in popular referenda by the Commonwealth Carib-

bean populace. They are therefore not the authoritative expres-

sion of our collective will. As Ann Spackman has argued, there

was no real involvement of the mass of the people in the process

of constitution-making.1Yet, our Independence Constitutions

remain forms of expression of Commonwealth Caribbean politi-

cal culture and identity. This is one of the great paradoxes

marking Commonwealth Caribbean Constitutions and political

identity. And this is further compounded by the fact that we

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claim to have retained the (British) Crown as our own, and its

Judicial Committee as our final court of appeal. The British

monarchy has therefore remained a potent symbol of

Commonwealth Caribbean political identity, a defining feature

of the Commonwealth Caribbean constitutional order. And the

Judicial Committee’s location at the apex of the Commonwealth

Caribbean judicial hierarchy holds important consequences for

the development of an indigenous jurisprudence, and virtually

seals the overriding influence of British constitutionalism on

Commonwealth Caribbean postcolonial constitutional evolu-

tion. In the circumstances, there can be no gainsaying the

shaping effects of these two English institutions on conceptions

of the Commonwealth Caribbean constitutional self; their deep

inscription in the Caribbean consciousness.

But the continuing presenceof the Crown and its Judicial Com-

mittee in the post-independence Commonwealth Caribbean

political order represents a vestigial incongruity, a contradiction

in the constitutional symbolism of a politically independent sov-

ereign order. The continuing presenceof the Privy Council, in

particular, has now become the occasion of great disquiet in

some quarters. This situation is now considered to be an abdica-

tion of a fundamental aspect of our sovereignty; it is therefore

deemed to be politically offensive. The domiciling of ultimate

judicial power over our constitutions in London, it is reasoned,

leaves our political independence incomplete. For the making of

law in general, and adjudication in particular, have come to be

seen as inseparable attributes of sovereignty.2As a very distin-

guished jurist, Mr. Justice Hyatali of Trinidad and Tobago has

remarked: ‘It is offensive to the sovereignty of independent

nations, and therefore politically unacceptable, to have a foreign

tribunal permanently entrenched in their constitutions as their

final court.’3And to this a former Attorney General of Barbados,

Sir David Simmons, adds:

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The Case for a Caribbean Supreme Court

The first reason for the abolition of appeals to the Privy

Council must surely be the question of sovereignty and

independence. The independence of the states of the

region will not be complete, is not complete, when our

constitutions entrench a foreign tribunal as our final

court of appeal. It is inconsistent with independence: it is

an affront to our sovereignty and the sovereignty of inde-

pendent nations. You may say this is an emotional argu-

ment, but these psychological considerations are

important and the symbolism is not to be discounted.4

The validityof these claims would seem unassailable. The estab-

lishment of a Regional Court of Appeal must therefore be seen as

an essential aspect of the constitutional reform project. Indeed,

the establishment of such an institution is indispensable to the

overall nationalist project of reconstructing Commonwealth

Caribbean political identity. But, sadly, the most urgent pleas in

recent years for the establishment of a regional appellate court

and for the abolition of appeals to the British Privy Council have

come largely on the heels of certain Privy Council decisions, of

which the most notable is the Jamaican case of Pratt and Morgan.

Of all the invectives levelled against the Privy Council for some of

its decisions, the most egregious, in my opinion, have come from

the Barbados Government. In the 1999 Throne Speech, it was

stated that

the rule of law which is the foundation upon which civil

society is organised and regulated is being imperilled by

judicial decisions in England. It cannot continue.

[Therefore], having regard to the composition of this

Parliament and with a view to giving fullest expression to

the will of the Government and people of Barbados, my

Government, without prejudice to the future enactment

of constitutional amendments recommended by the

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