Ray­mond Ram­char­i­tar

Apro­pos of the dis­cus­sion of the pre­vi­ous few weeks, of how and why peo­ple be­have the way they do in a/our so­cial sys­tem, Prof Richard Dray­ton's dis­tin­guished lec­ture, "Whose con­sti­tu­tion? Law jus­tice and his­to­ry in the Caribbean," de­liv­ered for the Ju­di­cial Ed­u­ca­tion In­sti­tute on March 2, pro­vides a fas­ci­nat­ing piece of the puz­zle. (It's avail­able at www.tt­law­courts.org.)

Prof Dray­ton, a his­to­ri­an, was born in Guyana, grew up in Bar­ba­dos, and was ed­u­cat­ed at Har­vard, Yale, Ox­ford and Cam­bridge. His lec­ture be­gan with the premise of a re­gion­al "pro­found and un­ac­knowl­edged con­sti­tu­tion­al cri­sis." More specif­i­cal­ly, "many of our cit­i­zens, de­spite giv­ing the right to vote, do not have a sense of own­er­ship of, and a du­ty of care to­ward the state, so­ci­ety and the law."

This is al­most Naipau­lian in its up­end­ing of no­tions of a "Caribbean" cul­ture or civil­i­sa­tion. Nonethe­less, the lec­ture is an ar­gu­ment for the en­trench­ment of the CCJ, as op­posed to the Privy Coun­cil as the re­gion's fi­nal court of ap­peal. I dis­agree with the con­clu­sion but the his­tor­i­cal in­sight is brac­ing and time­ly.

One just needs to look around re­gion­al prison and jus­tice sys­tems to see how alien­at­ed peo­ple are from the in­sti­tu­tions of the so­ci­eties to which they sup­pos­ed­ly be­long. If one case is em­blem­at­ic of this it's the re­cent con­vic­tion of Michae­line Wall, a woman born with a con­gen­i­tal med­ical con­di­tion, who was charged with pos­ses­sion of mar­i­jua­na and faced ei­ther a 12-month sen­tence or a $2,500 fine.

Ms Wall's state­ment that mar­i­jua­na re­lieved her con­stant pain, de­spite its le­git­i­mate med­ical use in the US, UK and else­where, backed by co­pi­ous re­search, was ig­nored. It's il­le­gal here. And the jails are packed with young (main­ly black) men who have had their lives ru­ined for pos­ses­sion of small amounts of mar­i­jua­na (while mur­der­ers, child mo­les­ters and cor­rupt politi­cians roam free).

The prob­lem be­gan, says Dray­ton, with the puni­tive pos­ture of the law to Caribbean sub­jects, rather than a civ­il, con­sen­su­al re­la­tion–"Our so­ci­eties were forged less from the love of lib­er­ty than by gen­er­a­tions of vi­o­lence sanc­tioned by statute and com­mon law." The key is­sue is that "very few sub­jects of the Eng­lish Crown in the trop­ics were le­gal per­sons...from the sev­en­teenth cen­tu­ry to about 1830, on­ly white prop­er­tied men who were com­mu­ni­cant An­gli­cans were ful­ly in­clud­ed as rights bear­ers."

The pri­ma­ry pow­er re­la­tion (he con­tin­ues) was man­i­fest as an ab­solute con­trol over the slave, and lat­er in­den­tured work­er, by the own­er/em­ploy­er. The tra­di­tion con­tin­ued af­ter eman­ci­pa­tion in Crown Colony Gov­ern­ment, which ap­plied those prin­ci­ples to the whole so­ci­ety. And this pre­sump­tion and prac­tice of ab­solute pow­er over the bod­ies of sub­al­terns ("sub-per­sons") im­bued the new­ly form­ing mech­a­nisms of au­thor­i­ty (po­lice, law, over­seer, health, ed­u­ca­tion).

Re­gion­al in­de­pen­dence con­sti­tu­tions, in­stead of ad­dress­ing this per­ver­sion in law, re­tained it through "ouster" and "sav­ings" claus­es. These trans­ferred rights of the sov­er­eigns to gov­ern­ments, and pro­tect­ed ar­cha­ic and bru­tal pre-ex­is­tent leg­is­la­tion from re­view.

The men­tal­i­ty which brought this about was a lega­cy of Crown Colony gov­ern­ment which in­fect­ed the men (main­ly) who wrote the In­de­pen­dence con­sti­tu­tions. Rather than de­liv­er­ing their na­tions from colo­nial in­jus­tice, as Dray­ton puts it, "al­most every colo­nial pre­mier and post­colo­nial Prime Min­is­ter want­ed ex­act­ly such ab­solute pow­er."

All this is used as thrust for Dray­ton's con­clu­sion which is the ne­ces­si­ty of a CCJ to de­vel­op a more in­dige­nous tra­di­tion of ju­rispru­dence, since the Privy Coun­cil ad­ju­di­cates with ref­er­ence to the evolv­ing law of its precincts–the UK. This is where I part ways with the pro­fes­sor.

He cor­rect­ly iden­ti­fies the patho­log­i­cal trait of the in­de­pen­dence politi­cians, and their suc­ces­sors–they, in ef­fect, want­ed to be the op­pres­sor, not to end op­pres­sion. But he rec­om­mends as a cure for this syn­drome the com­plete sev­er­ing of ties with the UK/metro­pole, rather than the de­sire (ex­pressed by Al­bert Gomes et al) to be a self-rul­ing full part­ner in the Em­pire/Com­mon­wealth rather than a satel­lite en­ti­ty. (Which po­si­tion is the cor­rect one seems to be ev­i­dent giv­en the last 50 years of in­de­pen­dence and em­i­gra­tion sta­tis­tics.)

Dray­ton evades this con­clu­sion by not tak­ing his ob­ser­va­tions to their log­i­cal ter­mi­nus: the new rul­ing class­es were in­doc­tri­nat­ed by the same regimes of thought as the in­de­pen­dence lead­ers. The de­sire for con­trol over the sub­al­tern, to re­live the hu­mil­i­a­tions of colo­nial­ism, but as the brute rather than the bru­talised, per­vad­ed and per­vades, the very at­mos­phere of au­thor­i­ty in these is­lands. From po­lice­men, store clerks and civ­il ser­vants, to Cab­i­net min­is­ters, men of com­merce, and pro­fes­sion­als (doc­tors, lawyers, ac­coun­tants)–the de­sire and prac­tice of bru­tal­i­ty re­main.

It is from this hu­man re­source pool that would come the men (main­ly) who would be charged with the de­vel­op­ment of the Caribbean ju­rispru­dence. It's un­der­stand­able why Prof Dray­ton does not come to this con­clu­sion–he is speak­ing to con­tem­po­rary le­gal and po­lit­i­cal es­tab­lish­ments which be­lieve them­selves to be more en­light­ened than their pre­de­ces­sors. How­ev­er, as the state of the na­tion, and the re­gion, show, it ain't so, Joe.

The main is­sue fac­ing the so­ci­eties rid­dled with crime, dys­func­tion­al schools, abuse, vi­o­lence, and in­sti­tu­tion­alised ig­no­rance can't be solved by falling back on in­dige­nous re­sources, which Dray­ton calls "sec­ondary de­coloni­sa­tion." Quite the op­po­site: why de­vel­op the­o­ries when work­able ones al­ready ex­ist? Cars from Japan run on Caribbean roads. Met­ro­pol­i­tan med­i­cines cure lo­cal dis­eases. Amer­i­can com­put­ers trans­mit Tri­ni in­for­ma­tion.

This isn't to say there should be no lo­cal adap­ta­tion or in­no­va­tion, but sev­er­ing ties with the past, and the present of the colonis­er/metro­pole, has proven to be dis­as­trous here and else­where. Iron­i­cal­ly, the is­sue is em­blema­tised in Pro­fes­sor Dray­ton: the bright­est and best leave, and of­ten adopt a pa­tro­n­is­ing met­ro­pol­i­tan lib­er­al at­ti­tude to lo­cal is­sues. Here, the very peo­ple who kept the sav­ings and ouster claus­es are re­born every gen­er­a­tion to guide so­ci­eties to fear in­tel­lect and in­no­va­tion, and chase them away or stran­gle them.