As Declared by Collymore v AG, the constitution declares supremacy of the law. However, when it comes to the Caribbean, we are in a peculiar situation; our laws are transcribed from Britain. Our constitutions are model after a variant of the Westminster system maintaining colonial presence in the Caribbean, despite us being independent states. The line from Drayton, ‘The worm in the mango of constitution is an idea of law as dominion and subordination.’ speaks to the captivity that Britain still holds, and we afraid of letting go. Britain still having its hands dipped into the Caribbean stew. The modern anglophone Caribbean constitution bears the imprint of a long colonial laws imprinted of the Caribbean due the hierarchy of colonial differences. The question now left to ask is when will the Caribbean let go from the Westminster System of the constitution and create a new one that speaks to the core values of the Caribbean Society?
The Westminster model presents a problem for the Caribbean as it aims to maintain the status quo of the colonial era. Essential features such as: First, the entrenchment of property rights in the Constitution.Second, entrenchment of the two-Party system. Third, preservation of the laws, institutions, and symbols of the colonial state.And fourth, alliance with the Western powers in the Cold War. All show ways in which colonial symbols were passed down and maintain despite our declaration of freedom. The implantation of the colonial mindset of black elite of the Caribbean prove successful as they further maintained a system that further continuity instead of rupture. The irony of such traditionalism are not hard to miss as Black Nationalist align themselves with political traditions that systematically oppresses and excluded people of colour. This proves problematic as they were some of the most critical voices of the colonial system.
In other words it comes as no surprise as Eric William a previous Prime Minister of Trinidad and Tobago, one of the fiercest critics of colonialism, slavery and capitalism, declared ‘That if the Parliamentary system is good enough for England, it is good enough for us.’ And even a previous Prime Minister of Jamaica Norman Manley shared similarities, asserting the view that, ‘the British Constitution is the best in the…the only good system in the world.’ Both Eric Williams and Norman Manley as Drayton states both ‘simply wanted command of their own state apparatus within the sphere of British dominance.’ It simply leads to not only their nation downfalls robbing us of truly becoming independent states with laws catering to our unique demographic and history. Louis Lindsay, a Jamaican political scientist summarized it perfectly in the case of Norman Manley. He (Norman Manley) simply did not want to ‘jeopardize the country’s chances to receive use of institutions of Westminster government.’ Many others like them both saw how tantalizing it was to keep the system that afforded to them almost dictatorial like power. The office of the Prime Minister provided that much.
Furthermore, the constitution ascribed to the Westminster system seemed to have betrayed the Caribbean People. It speaks a lot about the state of mind of our Governor General, Prime Minister, Judiciary and other offices of power within each jurisdictions’ local government when holding an office each is required to give an oath swearing ‘to be faithful and bear true allegiance to her Queen’s Majesty Queen Elizabeth II, Her heirs and Successors’. part of that oath speaks to protecting the dignity of the people? What part speaks to sovereignty of our nation builders or even acknowledges the atrocities committed to our people who consistently without fail hold the offices in high regard. It begs to question if Governments really acts in the best interest of the people or align policies regarding foreign interest. It carefully appears that white insecurity and fear of the majority of enslaved population and later freed people dictated the shape of constitutional law in the British Caribbean.
On the other hand, this does not hinder Caribbean jurisdictions from making amendments to the constitution to better aid in protecting some of our society’s most vulnerable groups. The original constitution only preached about freedoms and rights but never about sharing equality amongst all groups in the Caribbean; for example, the extremely ignored indigenous groups. Inclusion or more so equality was not acknowledged during the making of our constitution during the post-colonial era of the 1960’s and 70’s. Rex Nettleford popularised the term ‘smaddisation’ describing our post-colonial process to be recognized in our own constitutions.
The indigenous groups in the Caribbean have suffered long periods of economic, social and political marginalization. Despite some form of acknowledgement via a coat of arms of some Caribbean countries, they are still a largely ignored community. Only recently has a more meaningful constitutional space begun emerging within the Caribbean for our indigenous communities. The 2001 amendment to the Belize Constitution now provides in the preamble (where the atrocities committed to our communities go largely ignored) that the people of Belize require policies of the state ‘which protect the identity, dignity and social and cultural values of Belizeans, including Belize’s igneous peoples.’
The amended preamble to the Belize constitution has been used as an aid to interpreting the rights to property and non-discrimination in the Belize Constitution, giving ground-breaking recognition of collective property rights for Mayan-Belizeans. This shows that Caribbean governments can rectify our past leaders’ mistakes and begin doing right by the people. Similarly, it shows that we can go beyond such scope as demonstrated in Guyana. Their new amended preamble refers to value given to ‘the special place of Indigenous Peoples’ and acknowledges ‘their rights as citizens to land and security and to their promulgation of policies for their community.’ However, this presents a significant problem for the courts when challenges are brought forward by theses groups in claiming their ancestral lands, resources and demanding free goods that are seemingly granted to them under these new amendments presented in the constitution.
If the Caribbean jurisdictions can amend their constitution accommodating the forgotten ones of our society, what exactly is stopping them rerouting the system? The answer lies in the saving law clauses entrenched in every constitution across the Caribbean. The saving law clauses attempts to preserve pre-colonial laws often at the expense of human rights provisions in the constitution. More so in relations with the penalty that exist in a lot of Caribbean Jurisdictions. In Nasrallah v DPP,24 the Privy Council declared that the fundamental rights which were enshrined in the new Jamaican Constitution were ‘already secured to the people of Jamaica’.25 Consequently, in interpreting the saving law clause, the court found that rights and freedoms as declared under the new written Constitution were subject to the ‘existing law’ or saved common law. The decision therefore reveals a tension between written constitutional guarantees of fundamental rights and pre-independence rights, as expressly saved.
The Saving Law clauses protect the pre-colonial laws from being challenged, and if they are, it is brought before the Privy Council where they have the final say maintaining the British powers within our systems. However, once again this does not mean that we are in capable of changing our Constitution to represent a truer picture of our Caribbean demographic Guyana was able to slay the ‘Westmonster’ and has actually completed any fundamental reform to the extent that their constitution can no longer be described as being ‘akin to the British model’ suit their country’s needs. On the flip side, not all Countries can be successful, as with the Constitutional Referendum held in St Vincent and the Grenadines in 2009. The attempt largely failed due the hostility of the opposition party transforming what could have been a momentous occasion in the country’s history in a political rallying cry for elections. Gonsalves noted it was ‘bizarre, inconsistent and unpatriotic’ as they had pulled out of the process as such a relatively late stage. A perfect example of how some black elite of our nations are so averse to anything but the west ministerial system.
In conclusion, the constitution was created in mind to abate colonial affairs and protecting the interest Britain giving an illusion of independence. It was never designed with the intention to acknowledge the people but to keep us in check. This does not mean a day would not come where we shake the shackles of our colonial past.
BIBLIOGRAPHY
Collymore v Ag [1967] 12 WIR 5 (n 101)
Nasralla v DPP [1967] 2 AC 283 (n101)
Robinson Tracy, Bulkan Arif, Saunders Adrian Fundamentals of Caribbean Constitutional Law (first published 2015, Sweet & Maxwell)
Antoine Belle Rose-Marie Commonwealth Caribbean Law and Legal Systems (second edition 2008 Routledge-Cavendish)
Girvan, N, ‘Assessing Westminster in the Caribbean: then and now’ (tandfonline 15 January 2015 < https://www.tandfonline.com/doi/full/10.1080/14662043.2014.99316 2> accessed 24 October 2019
Bishop, L, M ‘Slaying the ‘Westmonster’ in the Caribbean? Constitutional Reform in St Vincent and the Grenadines ( onlinelibray.wiley 14 December 2010) accessed 25 October 2019