Hamid Ghany

As sev­er­al Com­mon­wealth Caribbean coun­tries cel­e­brate Eman­ci­pa­tion Day to­mor­row, it is im­por­tant to lo­cate the sig­nif­i­cance of the emo­tions felt on such an oc­ca­sion, es­pe­cial­ly in re­la­tion to the is­sue of hu­man rights.

In the British West In­dies there was a fun­da­men­tal di­choto­my be­tween the val­ues es­poused by the 1215 Magna Car­ta that was sub­se­quent­ly re­vised sev­er­al times, and the con­struc­tion of slave so­ci­ety. Magna Car­ta has been cel­e­brat­ed as the foun­da­tion stone of many con­sti­tu­tion­al sys­tems and hu­man rights ma­tri­ces in a va­ri­ety of coun­tries. How­ev­er, in the West In­dies, it is ap­par­ent that the prin­ci­ples of Magna Car­ta were not promi­nent in the his­to­ry of the re­gion un­til the prepa­ra­tion of in­de­pen­dence con­sti­tu­tions.

The fun­da­men­tal chal­lenge lay in the fail­ure of British set­tlers in the British West In­dies to ap­ply the prin­ci­ples of Magna Car­ta to all peo­ple in the colonies that were set­tled, con­quered or ced­ed in the name of the British Crown. Pri­mar­i­ly, the laws that were de­vised to fa­cil­i­tate slav­ery and the slave trade in the British West In­dies re­gard­ed African slaves as prop­er­ty and not as peo­ple there­by con­tra­ven­ing the core prin­ci­ples of Magna Car­ta.

The at­ti­tude of the British im­pe­r­i­al courts to­wards slaves demon­strat­ed the di­ver­sion from Magna Car­ta in the West In­dies.

The best ex­am­ple of the racial su­pe­ri­or­i­ty fac­tor in the ap­proach of British colo­nial ad­min­is­tra­tors is cap­tured in the fol­low­ing ex­cerpt from the Re­port by Ma­jor E F L Wood who toured the West In­dies and British Guiana in 1921-22:

"The whole his­to­ry of the African pop­u­la­tion of the West In­dies in­evitably dri­ves them to­wards rep­re­sen­ta­tive in­sti­tu­tions fash­ioned af­ter the British mod­el. Trans­plant­ed by the slave trade or oth­er cir­cum­stances to for­eign soil, los­ing in the process their so­cial sys­tem, lan­guage and tra­di­tions, and with the ex­cep­tion of some relics of obeah, what­ev­er re­li­gion they may have had, they owe every­thing that they have now, and all that they are, to the British race that first en­slaved them, and sub­se­quent­ly to its ho­n­our re­stored to them their free­dom. Small won­der if they look for po­lit­i­cal growth to the on­ly source and pat­tern that they know, and as­pire to share in what has been the pe­cu­liar­ly British gift of rep­re­sen­ta­tive in­sti­tu­tions." [Re­port by the Hon Ma­jor E F L Wood, MP (Par­lia­men­tary Un­der Sec­re­tary of State for the Colonies) on his vis­it to the West In­dies and British Guiana, De­cem­ber 1921-Feb­ru­ary 1922, Cm­nd. 1679 (1922), p 6].

In fram­ing colo­nial pol­i­cy for the British West In­dies, this quote from Ma­jor Wood (who lat­er be­came Lord Hal­i­fax, the Sec­ond World War For­eign Sec­re­tary in Win­ston Churchill's War Cab­i­net) high­lights the mind­set of racial su­pe­ri­or­i­ty as the ba­sis for en­gage­ment.

There were two le­gal cas­es that held great sig­nif­i­cance for the way in which slaves were to be treat­ed dur­ing the pre-eman­ci­pa­tion pe­ri­od.

The first was the mat­ter of Som­er­set v Stew­art [(1772) 98 ER 499] which es­tab­lished that slav­ery could not be prac­ticed in Eng­land, but left open the is­sue of whether it could be prac­ticed in oth­er parts of the British Em­pire by virtue of the am­bi­gu­i­ty of the judg­ment of Lord Mans­field in this re­gard.

The sec­ond was the mat­ter of Greg­son v Gilbert [(1783) 3 Doug KB 232] oth­er­wise known as the Zong mas­sacre. In this case an in­sur­ance claim in­volv­ing a slave ship called the Zong was ad­mit­ted. The in­sur­ance claim was for re­cov­ery of loss­es by the shipown­ers for a loss of car­go when 132 slaves were thrown over­board in or­der to re­tain sup­plies of food and wa­ter for those on board. This hor­rif­ic act was up­held by Lord Mans­field and the own­ers were lat­er com­pen­sat­ed for the loss of the slaves.

The phi­los­o­phy of re­gard­ing African slaves as prop­er­ty and not as peo­ple was a core im­pe­r­i­al le­gal phi­los­o­phy of the pre-eman­ci­pa­tion era as high­light­ed by these two cas­es.

Even though Eman­ci­pa­tion Day would come on Au­gust 1, 1834, it is re­al­ly the ad­vent of hu­man rights in the in­de­pen­dence con­sti­tu­tions from 1962 on­wards that se­cure equal­i­ty and jus­tice for all in the so­ci­ety. Both the Cana­di­an Bill of Rights 1960, in the case of T&T, and the Eu­ro­pean Con­ven­tion on Hu­man Rights 1950, in the cas­es of the oth­er eleven in­de­pen­dent coun­tries of the Com­mon­wealth Caribbean, can trace in­flu­ences from Magna Car­ta.

In T&T, our con­sti­tu­tion­al foun­da­tion was best cap­tured by Dr Er­ic Williams at a pub­lic meet­ing on Ju­ly 19, 1955, in Wood­ford Square, Port-of-Spain, be­fore he had en­tered elec­toral pol­i­tics, when he said:

"The Colo­nial Of­fice does not need to ex­am­ine its sec­ond hand colo­nial con­sti­tu­tions. It has a con­sti­tu­tion at hand which it can ap­ply im­me­di­ate­ly to Trinidad and To­ba­go. That is the British Con­sti­tu­tion. Ladies and gen­tle­men, I sug­gest to you that the time has come when the British Con­sti­tu­tion, suit­ably mod­i­fied, can be ap­plied to Trinidad and To­ba­go. Af­ter all, if the British Con­sti­tu­tion is good enough for Great Britain, it should be good enough for Trinidad and To­ba­go."

It is with­in this mod­el that our hu­man rights pro­vi­sions were sub­se­quent­ly in­clud­ed for the in­de­pen­dence Con­sti­tu­tion.