Tracy Robinson, a recently recruited lecturer at The University of the West Indies, contends that the Jamaican Constitution and several other Caribbean constitutions show a persistent British influence that impedes full independence.
At the UWI, Mona campus in St Andrew, Robinson gave her first professorial lecture titled “A Caribbean Common Law in Flux: Imagining a Future for a Fuzzy Legality.” She made the argument that these colonial legacies have led to a protracted process of decolonization while also acting as a guide for the region’s current state.
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Robinson noted, “Decolonization is often viewed as a breakup; however, it has generated new entanglements between the colonizer and the colonized.”
The law professor clarified that because the Privy Council’s Judicial Committee still meets in the Caribbean, there is a lasting closeness between the two organizations. While UK barristers appear in regional matters and build specialized practices in local laws, Caribbean attorneys regularly go to London.
Robinson referred to this link as a “dyadic constitution,” in which the external British constitution, which has been greatly impacted by colonial history, is entwined with the formal constitution. She emphasized that by incorporating British institutions into Caribbean government, imperial laws and policies create the structural foundation for Caribbean constitutions.
“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.
Robinson went on to say that the procedures that resulted in the constitutions that are presently in effect throughout the area were carried out in a way that does not make it clear how the various nations arrived at their current legal systems. She pointed out that the Privy Council is one of the main examples of the imperial inspection structures included in the independence constitutions of most Caribbean countries.
She emphasized that, in the ten years after gaining independence, Guyana was the first nation to do away with Privy Council appeals. However, in situations when local parliamentary rights are absent, Trinidad and Tobago’s republican constitution still permits UK parliamentary privileges to take precedence.
“Except for Dominica, all have incorporated British institutions into their governance structures, including the monarchy as the head of state,” Robinson noted.
She further drew attention to the fact that several OECS constitutions not only contain clauses about ongoing supervision but also firmly establish them.
Robinson contended that a referendum is required in the majority of OECS countries, the smaller Caribbean states at the time of independence—to rectify this error.
After the presentation, she informed the Gleaner, “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.”
“This isn’t a philosophical question, it has produced enormous challenges for reform to the ECSC.”
Robinson emphasized that it is frequently unjustified to criticize Caribbean nations for failing to succeed in referenda to break their links to the Privy Council.
“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 thought to herself.
“It is extraordinary that an independent state could need the permission of their old colonizer to end appeals to an imperial court, entirely with UK control.”
In her remarks, she cited a legal advisor to the UK Foreign and Commonwealth Office who mentioned that constitutional “weavers” in London worked on 33 independence constitutions, and their work frequently resembled “scissors and paste.” By using this strategy, long-standing British policies were maintained, and Caribbean governments were replicated.
Robinson issued a warning to Caribbean countries about the need to refrain from “digging into an unmoored identity” in the future. According to her, Caribbean common law must look outside itself in the future.
“If we give careful and just attention to a Caribbean common law, we find in our present constitutional [arrangements] intimacies that we have misrecognized that have left us highly self-critical of our Caribbean bodies and incurious about the durability and pressure of our imperial garments,” the instructor ended.
