The nation should be embroiled in a significant debate on the issues relating to the change to our constitution to allow for the move from the Privy Council to the Caribbean Court of Justice (CCJ) as our final court of appeal. The problem is, we are not really having a debate. Instead, we are participating in a sideshow and the main event is being ignored.
We have listened to public and private conversations quite intently and the key thing missing from the so-called “debate” is a detailed discussion of the issues. We are not talking about the ‘pros and cons’ of the move because we are too busy hurling personal insults at each other and defending ourselves from those insults. And it is happening on both sides! Instead of talking about the financing of the court, the perception of justice in a small community, and our readiness for the move, we talk of patriotism, colonialism and dunces. We are quick to push the argument into related generalities so as to avoid dealing with the issues at hand.
The pro-CCJ advocates wrap the argument into a patriotic blanket and then force those who have a different opinion to defend against the charge that they are not patriotic or they are in their love of the old days of colonialism. If the argument is not persuasive enough, often the race card is drawn, with talk of history, self-loathing and continued enslavement. On the other side, those who prefer to stay with the Privy Council label those who disagree with that opinion as dunces, lovers of corruption and blind followers. None of this gets us anywhere or persuades anyone to move from the position that they have taken. For many arguing, on both sides, this works. They believe that as long as they are not shifted, then they have won. But nothing could be further from the truth. Why can’t we respect each other’s opinions and, through meaningful dialogue, attempt to persuade each other to adopt a different perspective? And even if one is not persuaded by the strength of the points presented, “reasonable minds can disagree,” and “one can disagree with being disagreeable.”
The reality is, no matter which side you are on, the concept of the CCJ and CARICOM are good ones and inevitable. A united Caribbean is our only hope of survival in the future because, individually, we are too small to go it alone. Even the larger islands would be hard pressed to make their way through the maze of a shrinking global economy without some help and size. That said, there are some practical questions that must be addressed by the CCJ before we take the giant leap of abandoning the Privy Council. So, from our perspective, it is not a question of “if” we will join but rather, “when” is the the right time to join? This is an important concept to understand because to say “never” to either side of the debate is non-productive.
One of the most important topics being sidestepped is the financing of the court. A trust fund of approximately US$101 million dollars was established in 2006 to fund the court in perpetuity and to remove the influence of governments. Investments from the fund and revenue from the court were expected to ensure that the court was self-sustaining and free it from ever having to go cap-in-hand to the various governments. A good concept in theory but not in practice, because in 2016, according to the official CCJ Annual Report, the fund stood at US$82,323,416. Granted, the fund was established during turbulent global economic times but those first few years pale in comparison to the bull market that has existed since early 2009.
In fact, during that time, the S&P 500 has set a record for the longest bull market in history and has gained over 300 percent. During the same time and up until the end of 2016, the CCJ Trust Fund has lost a great deal of its overall value. This is a serious matter because it does not take a financial genius to see that the fund is depleting and with less money to invest, there will be less returns. And with less returns and increasing costs, the fund will likely deplete at a faster rate than it already has. What happens then? This is a question that no one wants to answer. It is not enough to say that “we will cross that bridge when we get to it” or “don’t worry, the governments will have to pay up,” because neither of those, and the many other causal answers, are satisfactory.
First, we don’t want the CCJ going to the governments for support. It betrays the reason for the Trust Fund and it makes the court dependent on the governments for its existence. Whether real or not, the perception is that they will not bite the hand that feeds them when it matters. The root cause of the problems that place the current Appeals Court, and our beloved University of the West Indies, is money. More specifically, the inability of the governments to meet their financial obligations to these institutions. We cannot let the CCJ fall victim to the same ills.
If we may be allowed to use an analogy. This is akin to asking someone to come aboard a boat for a long journey, maybe a life at sea. However, when that person arrives at the docks, he notices that the food and drink stocks are already down to 80 percent and there are no plans on how to replenish them while at sea with no land in sight. We doubt that they will be satisfied with a response that says that the boat captain will send a message in a bottle to the mainland and ask for them to send a supply ship to top-up the stocks. It is more than likely that, without the comfort of being briefed on a realistic plan, the person will decline the invitation to board.
This is just one of many concerns not being dealt with. Questioning the financing of the court is not a non-patriotic act. It is actually very patriotic because it seeks to engage in a discussion to better the CCJ on one of the issues that is at the heart of continued independent justice. It does no one any good to ignore the multi-million dollar question. Just answer the question, “What are we going to do when de money gorn?”
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