Book: Caribbean Constitutional Reform: Rethinking the West Indian Polity
Author: Simeon C. R. McIntosh
Reviewed by: Billy Hall
THROUGHOUT THE Commonwealth Caribbean, political, economic and cultural developments are forcing even propelling discussions on the character of national constitutions.
The discussions are calling for fundamental review and radical change. This book, the first of its kind, is crucial to the constructiveness of such discussions.
The basic premise of the book is that the character and context of Commonwealth Caribbean political constitutions are fundamentally flawed. They neither define with authenticity nor represent with honesty or democracy the hopes and aspirations of the vast majority of the people whose best interest they purport to represent.
Consequently, there is urgent need to re-examine those documents, it is argued, with a view to rewriting them philosophically and approving them democratically, through a process that invites and integrates the widest possible people participation.
Until those documents are purged of their "vestiges of colonialism" and the entrapment of minds that produced them aristocratically and autochonously, true sovereignty cannot be claimed, the author posits.
The author is Simeon McIntosh, identified in the blurb on the back cover as hailing from Carriacou, the small island near to Grenada that is integrally a part of that nation.
He is stated to be Professor Emeritus of Law at Howard University, Washington, DC, USA and Professor of Law at the University of the West Indies (UWI), where he has been lecturing since 1991.
Evidently then, his qualifications are impeccable for a work of this nature, focusing on constitutional theory, and in the process providing brief reference to the historical evolution of the Commonwealth Caribbean's supreme legal instruments.
Along the way, he highlights aspects of those constitutions that expose critical issues of interpretation and function, relevant to national sovereignty and political identity.
REDEFINING CARIBBEAN IDENTITY
The burden of the author, and hence his declared thesis "is that constitutional reform must, above all else, result in a redefining of post-colonial Commonwealth Caribbean identity", and to achieve this goal, "must necessarily engage the Commonwealth Caribbean citizenry in a communal or national conversation."
Such is absolutely necessary, he asserts, so that, in the rewriting, what emerges is a "collective rethinking of the West Indian polity".
In the preface, the author explains that the book is essentially the revision and extension of previous work, published years apart in the Caribbean Law Review.
He identifies those essays as Constitutional Reform and the Quest for a West Indian Hermeneutics (1997), and West Indian Constitutional Discourse: A Poetics of Reconstruction (1993)."
In the merging and extending of those essays into this book, he brings into sharp focus the urgent need for constitutional reform in Commonwealth Caribbean countries. In doing so, he tackles both the philosophical root as well as the practical fruit of constitutions.
The three chapters represent the major sections of his theorising.
A foundation is laid as he comments insightfully on the historical origins and character of Commonwealth Caribbean constitutions. From that structure he proceeds to highlight the concept and content of the Bill of Rights, and, finally, he tackles the hermeneutics issue that affects the whole, when he focuses on the reading of the text and polity.
DULL
Other parts of this 368-page book are a preface, introduction, conclusion, select bibliography and index, which lack typographical attractiveness.
There are no devices to highlight points or facilitate quick references. There are no graphic reminders, such as boxes, quotes, graphs or even a photo of the author.
The cover is a dull grey that effectively obscures what the publisher explains to be written information. On the cover, writing barely discernible, is purported to be from Britain's Emancipation Proclamation to the colonies.
Of course, while those graphic features would have enhanced readability, the content is to be respected and will certainly benefit those who do endure to absorb the arguments. The sources identified are commendably numerous, even though the paragraphs are, regrettably, ponderous.
Focusing on the substance of the work, it is interesting to note the central importance of Jamaica to the whole.
As the author explains, Jamaica's constitution was the first to emerge and became law 'strict law' made so by "Imperial Legislation the Jamaica Independence Act 1962". The records will show that Jamaica's case was classic, in essential form, "replicated throughout the region in the 1960s, 1970s and 1980s."
The two critical weaknesses then, of the Commonwealth Caribbean constitutions, McIntosh says, are that they were not character documents of "revolutionary repudiation" of the Colonial past, and that they "fell far short of the democratic ideal".
He develops his argument to declare that the continuing presence of the Crown and its Judicial Committee in the post-independence Commonwealth Caribbean political order represents what he terms a "vestigial incongruity", a contradiction in the constitutional symbolism of a politically independent "sovereign order".
McIntosh, in advocating removal of such "vestigial incongruity" that many regard, as he says, to be "politically offensive", recognizes nevertheless, the objections to the establishment of a Caribbean Court of Appeal.
He identifies some practicalconsiderations (1) "paucity of talent" to fill an appellate court (2) the "susceptibility of local judges to political control", and (3) financial capability for establishing and maintaining the project.
FLAWED
He concedes the difficulties, but maintains they can be overcome if there is the "requisite political will."
What cannot be excused, he asserts, "is our continuing reluctance, near 40 years after independence to fashion our own institutions to suit our particular circumstances."
He maintains that retention of the British Privy Council as our final appellate court is a special case in point".
McIntosh seeks to attack the rational root of such practical concerns and so explores the hermeneutics of the problem, because he sees the minds of too many Caribbean political leaders as entrapped within an ideological prison that defies British jurisprudence.
For a genuine, authoritative Caribbean hermeneutics to emerge, he argues, it is imperative that we reject "the authoritativeness of the English tradition and its 'sacred' claims to the truth," for we can be authentically Caribbean in judicial matters only when we have freed ourselves "from bondage to English constitutional "dogma".
Interestingly, he identifies for critical focus the proposal for a Caribbean Court of Appeal. He says, "On no other issue would the strength of arguments for a Caribbean Court of Appeal be more tested than on the question of capital punishment specifically the issue of capital punishment by hanging".
His clear and consistent position is that Commonwealth Caribbean political constitutions are fundamentally flawed, and have been seriously misread. What is needed now is for legal luminaries to "read local circumstances critically in coming to principles and reassured decisions in individual cases."
This book then, calls for a new way to interpret Commonwealth Caribbean constitutions, a philosophical perspective that looks more ahead than behind, and so is more guided by creativity than procedure.
Publisher: The Caribbean Law Publishing Company Ltd, Kingston
