Caribbean constitutions still bound by British legacy

Newly appointed professor at The University of the West Indies, Tracy Robinson, argues that the Jamaican Constitution and several others across the Caribbean reflect a lingering British influence that hampers true independence.

During her inaugural professorial lecture titled ‘A Caribbean Common Law in Flux: Imagining a Future for a Fuzzy Legality’ at the UWI, Mona campus in St Andrew, Robinson suggested that these colonial legacies have resulted in a prolonged process of decolonisation, while simultaneously serving as a roadmap for the region’s current status.

“Decolonisation is often viewed as a breakup; however, it has actually generated new entanglements between the coloniser and the colonised,” Robinson stated on Thursday.

The law professor explained that a deep-rooted intimacy persists between the two groups, as the Judicial Committee of the Privy Council continues to operate in the Caribbean. Caribbean lawyers frequently travel to London, while UK barristers develop specialised practices in local laws and appear in regional cases.

Robinson described this relationship as a “dyadic constitution”, wherein the formal constitution is intertwined with an external British constitution, heavily influenced by imperial history. She pointed out that imperial laws and policies provide the structural framework for Caribbean constitutions, integrating British institutions into Caribbean governance.

“The Privy Council, the monarchy, the UK Government, and Parliament have all played significant roles. Notably, the Privy Council became a much more powerful court in the Caribbean after 1962, serving as a supranational constitutional court with oversight over our new constitutions and constitutional changes,” she explained.

MECHANISMS OF IMPERIAL OVERSIGHT

Robinson further asserted that the processes leading to the constitutions currently in use across the region were conducted in a manner that fails to clarify how countries arrived at their present legal frameworks. She noted that the independence constitutions of most Caribbean nations include mechanisms of imperial oversight, with the Privy Council being a prime example.

She highlighted Guyana as the only country that abolished appeals to the Privy Council within the decade following its independence. In contrast, Trinidad and Tobago’s republican constitution still allows for UK parliamentary privileges to prevail in cases where local parliamentary privileges are lacking.

“Except for Dominica, all have incorporated British institutions into their governance structures, including the monarchy as the head of state,” Robinson noted.

She also pointed out that some constitutions of the Organisation of Eastern Caribbean States (OECS) not only include provisions for continued oversight but have entrenched them deeply.

To eliminate this oversight, Robinson argued that a referendum is necessary in most OECS nations, the smallest Caribbean countries at the time of independence.

“The legal foundation for the Eastern Caribbean Supreme Court (ECSC) is a UK Order in Council, which has been deeply entrenched in all the OECS states. So, bizarrely a UK statutory instrument is entrenched in constitutions in our region,” she told The Gleaner following the lecture.

“This isn’t a philosophical question, it has produced enormous challenges for reform to the ECSC.”

‘SCISSORS AND PASTE’

Robinson emphasised that the criticism directed towards Caribbean countries for their failure to achieve success in referenda to sever ties with the Privy Council is often unwarranted.

“I think we have been hypercritical of Caribbean countries being unable to achieve successes in referenda in the OECS to delink from the Privy Council. Rarely do we ask, ‘Wait, why do independent states need a referendum to end a colonial arrangement?’” she reasoned.

“It is extraordinary that an independent state could need the permission of their old coloniser to end appeals to an imperial court, entirely with UK control.”

She referenced comments made by a legal advisor to the UK Foreign and Commonwealth Office, who noted that 33 independence constitutions were drafted in London by constitutional “weavers” whose work often resembled “scissors and paste”. This approach reproduced British systems of government in the Caribbean, perpetuating long-established British policies.

Looking ahead, Robinson cautioned that Caribbean nations must avoid “digging into an unmoored identity”. She asserted that the future of Caribbean common law must be outward-looking.

“If we give careful and just attention to a Caribbean common law, we find in our present constitutional [arrangements] intimacies that we have misrecognised that have left us highly self-critical of our Caribbean bodies and incurious about the durability and pressure of our imperial garments,” the professor concluded.

kimone.francis@gleanerjm.com