Clik here to view.
Last Thursday, the Caribbean Court of Justice marked its tenth anniversary with an intellectually stimulating ceremony at its headquarters in Port-of-Spain. There are now four Caricom countries that have adopted its appellate jurisdiction (Barbados, Guyana, Belize and Dominica), while all Caricom countries make use of its original jurisdiction under the revised Treaty of Chaguaramas.
The CCJ has used a narrative of seeking to “complete the cycle of our independence” in order to make its case to the public. As I have said before, the court ought to dispense with that narrative because it is faulty and fraught with intellectual contradictions.
Those contradictions are to be found on the Web site of the CCJ itself in respect of its descriptions for its former Chief Justice, Michael de la Bastide, as follows:
“Mr Justice de la Bastide demitted office as Chief Justice on July 18, 2002. He was sworn in as a member of the Privy Council by Her Majesty Queen Elizabeth II on July 27, 2004 and as President of the Caribbean Court of Justice on August 18, 2004.”
The CCJ Web site says the following about its current Chief Justice, Sir Dennis Byron: “In 2000 Mr Justice Byron was knighted by Queen Elizabeth II and he was appointed a member of the Privy Council in 2004.”
This is an intellectual contradiction that only arises when the argument about completing the cycle of our independence is made. It would be far better for the court to replace that narrative with a discourse about its modernity, its accessibility and its relevance to our region.
Knighthoods and membership of Her Majesty’s Privy Council are deeply-desired accolades among West Indian political and judicial elites. They are never surrendered because they define, in many respects, who we are as a people. They have been woven into the fabric of those countries that still have monarchical status.
The real completion of the cycle of our independence is the adoption of republican status moreso than the adoption of the CCJ. Three republics in the region no longer recognise Her Majesty Queen Elizabeth II as their Queen, namely Guyana, Dominica and Trinidad and Tobago.
In general, most regional public officials continue to swear allegiance to Queen Elizabeth II, her heirs and successors. When a change is made to that, then we can talk about completing the cycle of our independence.
Managing our own judicial affairs and retaining allegiance to Queen Elizabeth II in a personal capacity does not complete the cycle of independence. That is the case in Belize and Barbados. Guyana and Dominica are the only countries that have completed that cycle by becoming republics first and adopting the CCJ after.
Trinidad and Tobago completed the most important part of its independence in 1976 by becoming a republic. However, Dr Eric Williams refused to budge on the issue of the abolition of appeals to the Privy Council when the republican constitution was approved.
There are those who argue that the reluctance to advance to the CCJ in this country is based on a lack of self-confidence. I disagree with the self-confidence argument. The real issue is one of political trust.
In this country, there was an attempt by the PNM administration in 2006 to remove the Chief Justice. Prime Minister Patrick Manning commenced constitutional proceedings to remove Chief Justice Satnarine Sharma from office.
Concurrently, the then Chief Magistrate Sherman Mc Nicholls also facilitated criminal charges against the Chief Justice and indeed, an attempt was made by the State to arrest Chief Justice Sharma at his home.
Those were very dark days for the judiciary and the judicial process and the political wounds still remain to this day. The fact that when the time came to follow through with the requisite action in the Magistrates’ Court, Mc Nicholls suddenly decided that he had nothing to say and gave no evidence. The political damage had already been done.
What was worse was the fact that when Attorney General John Jeremie should have gone before the Lord Mustill Commission to give evidence against the Chief Justice, he too found a convenient way not to appear before it.
The general public has not forgotten that it was a Privy Council judge who held that Chief Justice Sharma had no case to answer. Sharma’s judicial career was ruined in the last few years before his retirement.
A few years before that, there was another controversy between the then Attorney General Ramesh Lawrence Maharaj and then Chief Justice Michael de la Bastide over the issue of the accountability of the judiciary and a Commission of Inquiry into the Judiciary under Lord Mackay was established.
The wounds from all of those judicial/political battles have undermined trust in the conversion from the Privy Council to the CCJ.
The best way to address the change itself is to have citizen participation in a referendum where the issues can be put squarely before the population, rather than being imposed from above by judicial and political elites who are embracing a faulty argument about completing the cycle of independence when that is not the real issue.