Clik here to view.
“The issue of acceding to the appellate jurisdiction of the CCJ should be the subject of a national referendum.”
This was the specific recommendation of the Constitution Reform Commission in its December 2013 report at page 44.
In his column last week, my colleague columnist Douglas Mendes sought to engage me in a debate about my views on the CCJ as expressed in my column the week before.
In his second to last paragraph, Mendes had this to say:
“Finally, I am puzzled by Dr Ghany’s concluding suggestion that the way to deal with the issue is to call a referendum. The Ramadhar Constitution Commission did not think a referendum was necessary to amend the Constitution to change the way our representatives are elected.”
It is obvious that Mendes missed the specific recommendation of the commission in respect of the CCJ that is cited above. This is further reinforced by the views of prominent individuals who held a forum at Gaston Court, in Chaguanas, last Sunday on the issue of the abolition of the Privy Council.
Former prime ministers Basdeo Panday (T&T) and Sir James Mitchell (St Vincent and the Grenadines) and former attorney general Ramesh Lawrence Maharaj all formed the view that there should be no change from the Privy Council to the CCJ without a referendum.
This is the only way that the CCJ will become grounded in the political reality of T&T because it will have to earn its political acceptance in a manner that will convey upon it a degree of political legitimacy that will serve as its armour in an environment that is clearly divisive on the issue.
Mendes misunderstood my argument about political trust when I raised the matter of the political attempt to remove former chief justice Sharma. His misunderstanding is captured thus:
“I presume that he means that there is the fear that our politicians will attempt to bring undue pressure on the CCJ, something to which the Privy Council is naturally immune.”
I was not making the argument of political trust on those grounds. What I am talking about is the public perception of local and regional justice as opposed to foreign justice and that it was a Privy Council judge, Lord Mustill, who concluded that there was insufficient evidence to proceed against Sharma. The failure of Sherman Mc Nicholls to testify against Sharma in the criminal matter is a scandal of its own that damaged public trust severely.
It is unfortunate that the local and regional examples of trusting the system of justice where there is political conflict is not a good one. Sir James Mitchell had his own personal story to tell. The Maha Sabha’s difficulties with the State in getting a radio licence and how they got justice from the Privy Council is another story. There would have been no Equal Opportunity Commission today were it not for the Privy Council. The voters in St Kitts-Nevis would have had an uncertain electoral outcome were it not for the Privy Council.
In political matters, there appears to be a greater public trust that one might get “justice” overseas more reliably than you may get it locally. Unfortunately, that is how our societies in the West Indies have evolved and that is the perception issue that needs to be addressed.
The current local “delay” in getting resolution to the allegations of murder and espionage that were made against Prime Minister Persad-Bissessar by Leader of the Opposition, Keith Rowley based on e-mails he read in Parliament in May, 2013, is falling into this domain.
Were it not for the Supreme Court of California and the sworn affidavits of Google Inc that the 31 e-mails that were read out never existed, one wonders what the state of play might have been. People form opinions about trusting foreign justice and they transmit such opinions into the arena of the CCJ whether justified or not. Somehow that is a blind spot for advocates of the CCJ as the final court of appeal.
Simply making a faulty intellectual argument about “completing the cycle of our independence” and expecting people to buy that invites failure.
What makes the “completing the cycle of our independence” argument a faulty one is the fact that there is now a convention that the Chief Justice of the CCJ must become a member of Her Majesty’s Privy Council as seen in the accession of chief justices de la Bastide and Byron to that body.
We are being asked to give up the Privy Council. But our CCJ chief justices are joining the Privy Council and carrying the title “Right Honourable.” This undermines the case for the conversion from the inside. Do not ask West Indian people to buy the case for the CCJ when the link is being kept. The desire to acquire these titles among West Indian judicial and political elites as well as for earning British knighthoods challenges the argument of “completing the cycle of our independence.”
A referendum should not be feared unless the elites are unwilling to trust the people.