by Patrick L. Robinson
I speak today not as a member of the International Court of Justice, and certainly not as an academic, nor even primarily as a lawyer. I speak as a proud citizen of a sovereign and independent country, Jamaica, in the hope that I can contribute to the resolution of certain issues from our colonial past that continue to haunt us.
I address three issues that go to the core of the question of the identity of the Jamaican people: the question of a claim for reparations for the enslavement of our ancestors, the replacement of the Monarchy by a Republican system of government and the replacement of the Privy Council by the Caribbean Court of Justice. Marcus Garvey said, “A people without the knowledge of their past history, origin and culture are like a tree without roots.” It seems to me that we have chosen not to remind ourselves of the origins of the great majority of Jamaicans; yet to proceed without acknowledgement of our past can only have negative implications for our national psyche and development as an independent country.
THE HISTORICAL CONTEXT
Jamaica’s relationship with England started in the period of republicanism that lasted in England for 11 years in the middle of the 17th century. In 1655, Cromwell sent Admiral Penn and General Venables to take Hispaniola (now Haiti and the Dominican Republic) from the Spanish; they failed, but not wishing to disappoint Cromwell by returning empty-handed, they proceeded to nearby Jamaica, which was not well protected, and captured it from the Spanish.
The English continued the trade in captured Africans, started by the Spaniards, to acquire labour, mainly to make prosperous their sugar plantations and to enrich even further, the plantocracy.
Born in bloodshed and sustained in bloodshed, the relationship between England and Jamaica was marked by atrocity upon atrocity against the enslaved. But they did not meekly accept their lot. Sam Sharpe’s Emancipation War of 1831, in which over 500 enslaved rebels were killed, the Morant Bay Rebellion of 1865, in which over 400 persons were killed and the Labour Protests of 1938 in which 15 persons were killed, are the seminal events that stoked the furnace in which Jamaica’s independence was forged. Although others assisted, notably the Baptist clergy in Jamaica and the abolitionists in England, emancipation from slavery was achieved by the struggle and courage of the enslaved men and women themselves. While the English gave the Caribbean enslavers 20 million English pounds as compensation for their loss, or almost £200 billion in today’s money, the newly freed people were given nothing materially and, for the most part, left to fend for themselves.
After being granted internal self-government in 1955 and becoming part of the short-lived West Indies federation, Jamaica became an independent country on 6th August 1962, with the Queen as the Head of Parliament and the Executive, but with no substantive role in the Government of Jamaica, where she is represented by the Governor-General. Therefore in one form or another, Jamaica has had a monarchical system of government from 1660 to the present time, and the enslavement of our ancestors by the British lasted for 183 years.
In 1833, the British established the Judicial Committee of the Privy Council to hear appeals from the “plantations and colonies”. The Privy Council was the final appellate body not only for colonial Jamaica, but for Dominions in the Commonwealth. However, today the vast majority of Commonwealth countries have severed ties with the Privy Council, leaving a paltry few, regrettably including Jamaica, with that court as their final appellate body.
The struggle for freedom and independence which started with the first cry for freedom by our oppressed ancestors from the south across the Atlantic will haunt us until we seize the plenitude of sovereignty and independence available to us by replacing the Monarchy with a Republic, the Privy Council with the CCJ and claim reparations to redress the wrong done to the ancestors of more than 92% of the Jamaican population.
We underestimate Jamaicans if we believe that we cannot take the steps to relinquish these two ancient symbols, make the claim, and at the same time adopt the measures necessary for our social and economic advancement.
THE CLAIM FOR REPARATIONS
It is to be regretted that so many of my countrymen and women do not wish to have a conversation about our history and do not wish to be reminded that they are descended from enslaved Africans. Why is it that, when following atrocities, others say “Lest we forget”, “We shall always remember” and “Never again”, but we say “Forget the past”.
The transatlantic enslavement of African people is the greatest atrocity and example of people’s inhumanity to another people in the history of humankind. It was:
•striking for its duration of over 350 years;
•unmatched for its barbarity – demonstrated in the 18th century by the Englishman ‘Thomas Thistlewood, whose favourite punishment for the enslaved on his Jamaican plantation was to coerce one of the enslaved to defecate in the mouth of another, whose mouth was then gagged for about three hours;
•unmatched for its sheer scale and magnitude, demonstrated, firstly, by the length of the pernicious triangular crossing from Great Britain to West Africa, then to the Caribbean, and to the Americas in the infamous Middle Passage (in which millions died) and back to Britain, a distance of over 12,000 miles;, secondly, by the number of persons enslaved – well over 15 million, according to Nigerian scholar Joseph Inikori; and thirdly, by the number of those killed – over six million – a figure based on those who died on abduction, on the journey to the so called slave castles, in the Middle Passage and on the plantations.
•unmatched for its profitability – manifested in the fact that in 1774 the average white person in Jamaica was 52 times as wealthy as the average person in Britain and that the compensation money paid to the planters started a second industrial revolution in the UK after 1835.
There must be a remedy for the grotesque wrong of transatlantic slavery. Why would anyone be surprised that a claim for compensation for the greatest crime against humanity in history would be made on behalf of its victims? And why should a country in which more than 92% of its population are descendants of those victims not have an interest in making such a claim?
We owe our enslaved ancestors our freedom and we owe it to them to make the claim for reparations.
In 1952 Germany paid Israel and the World Jewish Congress $65.2 Billion for atrocities committed during the Holocaust and for the resettlement of Jews. In 1988 the US paid $1.2 Billion to Japanese Americans who were interned in camps during the Second World War. A good example of the kind of reparations being sought for our enslaved ancestors is the $170 Million paid by New Zealand in 1995 to the Maoris for land stolen from their ancestors by settlers in 1863. An apology was also made.
No Jamaican need be embarrassed about the claim. Every Jamaican should support the claim, and to complement the splendid work by the National Commission on Reparations, schools, churches and community groups should educate their students and members about its significance.
A monarchical system of government is one in which the Head of State inherits power and is inherently undemocratic, since the will of the people has no influence on the process by which the Monarch, as Head of State, is appointed. Apart from the principled objection to a monarchical system of government, there is another reason why the present monarchical system is inappropriate for Jamaica: Jamaica is a post-oppression society and its people should not be asked to have as its Head of State a person who symbolizes the oppression inflicted on their enslaved and other ancestors.
By far the worst relic of enslavement, indentureship and colonialism is that they have left Jamaicans with a muddled sense of their identity. Colonisation has left ingrained in the psyche of Jamaicans the feeling that they are not good enough, that what they look like is not good enough and that what is foreign, especially if it is white, English, European or American is better.
The Monarchy is an anachronism that Jamaicans should not be asked to endure any longer. It is no more acceptable for a foreigner, or if you prefer, a non-citizen of Jamaica, to be the Head of State of Jamaica than it would be today for the Head of State of France or the Head of State of Germany to be the Head of State of the United Kingdom.
For the Monarchy to be abolished, in addition to the observance of other procedures, the Jamaican Constitution requires a two-thirds majority of both Houses of Parliament approving the relevant law and an affirmative outcome of a referendum. But there are many symbols that can be removed without going through those procedures. I give two examples. The nomenclature “Throne Speech” could and should be changed. For the new name, I suggest “The Marcus Garvey Policy Statement”; for “Queen’s Counsel”, I suggest, “Norman Manley Distinguished Counsel” (NMDC).
THE U.K. PRIVY COUNCIL
The time has also come to relinquish ties with the Privy Council. Yet there are some of us in Jamaica who oppose such a move exhibiting a concern that we cannot be depended on to be just and fair and deliver justice in the way that an English court can.
If Jamaica is independent and sovereign in sports, in music, in education, and in making decisions in every other facet of national life, including its legislative and executive functions, why shouldn’t Jamaica also be independent in its judicial function?
The right to appeal to the Privy Council is illusory since Jamaicans cannot afford the 5,000 mile trek for justice. Consequently, only a few persons utilise that court; in effect, only those who are relatively well off and those accused of murder who receive pro bono help from English lawyers. As one commentator has put it: it is only the wealthy and the wicked who go to the Privy Council.
There is another cogent reason for leaving the Privy Council. Like the tardy guest, Jamaica has overstayed its welcome. In 2009, Lord Phillips, former President of the UK Supreme Court, complained that his judges had to spend too much time on cases from the Commonwealth – 40% of their working hours. He said that “in an ideal world” former Commonwealth countries would stop using the Privy Council and set up their own final courts of appeal and that Caribbean countries should utilize the Caribbean Court of Justice (CCJ). After that classic put down, you would have to wonder why any country with ancestors such as National Hero Marcus Garvey, who preached self-reliance for the upliftment of the black race, would not have immediately set in motion the process to sever ties with the Privy Council and have its own final appellate body.
THE CARIBBEAN COURT OF JUSTICE
The Caribbean Court of Justice was established by an Agreement between countries in the Caribbean Community (CARICOM) in 2001. The CCJ has two jurisdictions. In its original jurisdiction it hears cases that arise from the interpretation and application of the CARICOM Treaty – these are mainly trade and integration related disputes. In its appellate jurisdiction it hears appeals from decisions of the courts of appeal of CARICOM states. So far four countries, Barbados, Guyana, Belize and the Commonwealth of Dominica have accepted the CCJ’s appellate jurisdiction.
But why a Caribbean court and not a Jamaican court, as our final appellate body? There is no denying that Jamaica shares with CARICOM members a common history of colonialism, enslavement, struggle, freedom and independence; and that common history makes them part of us, and us part of them. Moreover, the path to the CCJ and a Caribbean jurisprudence has been prepared by the common legal training provided to Caribbean students over the past 45 years under the auspices of the UWI’s Faculty of Law and the Council of Legal Education. It is a training that has produced lawyers of the highest quality as well as eminent judges, many of whom have become Chief Justices. As good as a final Jamaican appellate body would be, a final appellate body with judges from our sister Caribbean countries and Jamaica, would, by reason of the deeper pool to draw from, be better and stronger, and better serve Jamaica’s national interests.
The CCJ has in its relatively short life, earned a reputation for its excellent judgements, its accessibility, transparency and efficiency in the delivering of justice. Both the method of selecting the Court’s Judges and its funding have come in for praise from a group of scholars who examined the process for selecting international judges. They found that the Regional Judicial and Legal Services Commission (RJLSC) was the only non- State election body at the international level, and that the independence of the CCJ’s Judges was better preserved through selection by such a body than by governments.
They also found unique the Court’s funding by a Trust Fund based on funds originally borrowed on the international market by the Caribbean Development Bank, to be repaid by the governments. “It is surprising that in light of this objectively rendered and unsolicited praise of the CCJ’s selection process, some of my compatriots have found it possible to criticize the court in relation to the selection and non-selection of Jamaicans as Judges. Fifty three years after independence, the best gift to Jamaica would be a categoric and unequivocal decision to sever ties with those two symbols that are inappropriate for the country: the replacement of the Monarchy with a republican system of government – ironically, the system that prevailed in England in the first period of its relationship with our country – and the replacement of the Privy Council with the CCJ.
So strong is the sentiment against looking back into our history that if we continue along this trajectory, it would not surprise me to find that fifty years from today it will be considered offensive or a sign of ill-breeding to say anything about the enslavement of our ancestors or anything relating to Africa and blackness. One way of eradicating this pathology of national schizophrenia in relation to who we are and how we wish to be perceived as a people is to educate ourselves, beginning with the young, about our history.
Republican status is the natural and logical culmination of the process that began with the first cry for freedom by our oppressed ancestors and was continued by their full Emancipation in 1838 and the attainment of Independence in 1962. Replacing the Monarchy and the Privy Council and making the claim for reparations is about acknowledging and vindicating the struggle of our ancestors. We fail them if we do not grasp the plenitude of sovereignty and independence available to us – an abnegation and a grave betrayal of their hopes and aspirations.
To borrow the wonderfully expressive phrase from the Jamaican language used by Prime Minister Portia Simpson-Miller, “time come.”
But symbols are not an end in themselves; they are only a vehicle to take us where we want to go. Jamaicans must make Jamaica work. Our enslaved and other ancestors initiated the process that led to political independence. They would want us to achieve economic independence or as much of that as is attainable in our interrelated and globalized world. Mindful of Norman Manley’s charge to this generation “to reconstruct the social and economic society and life of Jamaica”, the best way to memorialise and celebrate the struggle of our ancestors is for Jamaicans to work hard to ensure that our country experiences real growth and development – time come for that too.
Patrick Robinson is a Jamaican. He is currently a Judge at the International Court of Justice at the Hague. He has held various positions, including Chairman of the Inter-American Commission on Human Rights, Member of the International Law Commission, Haiti Truth and Justice Commission, Chairman of the United Nations Commission on Transnational Corporations, and Judge of the International Criminal Tribunal for the former Yugoslavia.
The original article was borrowed from Mona News, a publication of the University of the West Indies. Click this link to view: http://www.mona.uwi.edu/publications/monanews/article5.html