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Is the West Indies West Indian? Part II

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Eleventh Sir Archibald Nedd Memorial Lecture


Grenada, 28 January, 2011

Nothing speaks louder of CARICOM’s current debilitation than our substantial denial of the Caribbean Court of Justice. The Bar Association of Grenada is host to this Lecture Series which is a memorial to a great West Indian lawyer. It is poignant that the Inaugural Lecture in this series delivered in 1996 was entitled:{{more}} Essentials for a West Indies Supreme Court to replace the Judicial Committee of the Privy Council as the final Appellate Court for Commonwealth Caribbean States and Territories. Fifteen years later, it is still apposite that I address this issue when we talk of being West Indian.

In 2001, twelve CARICOM countries decided they would abolish appeals to the Privy Council and establish their own Caribbean Court of Justice serving all the countries of the Caribbean Community with both original jurisdiction in regional integration matters and appellate jurisdiction as the final court of appeal for individual CARICOM countries. As of now, only Guyana (which had abolished appeals to the Privy Council on independence, believing it to be a natural incident of ‘sovereignty’), Barbados and now Belize – have conferred on the CCJ that appellate jurisdiction

Constitutional amendment is required for the abolition of appeals to the Privy Council. In practical terms, this means bipartisan political support for the CCJ. In Jamaica and Trinidad and Tobago (where the Court has its much sought after location), that political consensus does not exist – because the political party now in office in each of those two major regional jurisdictions has turned its back on its regional court. In St.Vincent and the Grenadines, a referendum last year rejected the transference of appeals to the CCJ.

The situation has been complicated by the issue of the death penalty on which the Privy Council, reflecting contemporary English (and EU) mores and jurisprudence has been rigorous in upholding Caribbean appeals in death sentence cases. Someday, the Caribbean as a whole must accept abolition of the death penalty. I believe we should have done so already, but, in a situation of heightened crime in the region, popular sentiment has induced political reticence. Even so, however, the Privy Council’s anachronistic jurisdiction persists; and the Caribbean Court of Justice remains hobbled in pursuing its enlightened role in Caribbean legal reform.

It is almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters – that the West Indies at the highest level of jurisprudence should be West Indian. A century old tradition of erudition and excellence in the legal profession of the Region leaves no room for hesitancy. As a West Indian I despair, as a West Indian lawyer I am ashamed, that the West Indies should be a major reason for the unwelcome retention of the Privy Council’s jurisdiction within the halls of the new Supreme Court in England. Having created our own Caribbean Court of Justice it is an act of abysmal contrariety that we have so substantially withheld its appellate jurisdiction in favour of that of the Privy Council – we who have sent Judges to the International Court of Justice, to the International Criminal Court and to the International Court for the former Yugoslavia, to the Presidency of the United Nations Tribunal on the Law of the Sea (from Grenada); we from whose Caribbean shores have sprung in lineal descent the former and current Attorneys General of Britain and the United States respectively.

As I recall this register of West Indian legal erudition, let me pause to pay tribute to the memory of Prof Ralph Carnegie who left us this month – a veritable icon of learning in the law and of service to it – and always a West Indian. As CCJ Judge Winston Anderson acknowledged at his funeral service last week, he died sadly without attainment of his vision of a fully functioning Caribbean Court of Justice, and fearful of the prospects for the legal monument he strove so hard to build. We owe him a more lasting memorial.

This absurd and unworthy paradox of heritage and hesitancy must be resolved by action. In law, as in ourselves, the West Indies must be West Indian. Those countries still hesitant must find the will and the way to end this anomaly, and perhaps it will be easier if they act as one. The truth is that the alternative to such action is too self-destructive to contemplate. The demise of the Court itself is not an improbable danger when in both Jamaica and Trinidad and Tobago the creation of a local final Court of Appeal is being canvassed. Loss of the CCJ will almost certainly frustrate progress on a Single Market and Economy – the vision of Grand Anse. We will have begun tearing up the Treaty of Chaguaramas whose Preamble recites “that the original jurisdiction of the CCJ is essential to the successful operation of the CSME”. If West Indian lawyers, in particular, remain complacent about this absurdity much longer – and I am afraid some are – we will begin to make a virtue of it, and in the end dismantle more than the Court.

So grave and present is this danger that in August last, five West Indians to whom the Region has given its highest honour, the Order of the Caribbean Community, took the unprecedented step of warning publicly “with one voice of the threat being posed to the Caribbean Court of Justice and the Community’s goals more generally”. I was among them. “We warn against these developments” we wrote, “which, as in an earlier era, could bring down the structures for advancing the interests of the people of CARICOM … carefully constructed and nurtured over many decades by sons and daughters of all CARICOM countries”. We were warning of the mire of despond we would stumble into if in this matter the West Indies ceased to be West Indian.

But let me add what we all know, though seldom say: to give confidence to our publics in their adoption of the CCJ as the ultimate repository of justice in the West Indies, our Governments must be assiduous in demonstrating respect for all independent West Indian constitutional bodies (like the Director of Public Prosecutions) lest by transference, Governments are not trusted to keep their hands off the CCJ. And Courts themselves, at every level, must be manifestly free from political influence and be seen to be sturdy custodians of that freedom. In the end, the independence of West Indian judiciaries must rest on a broad culture of respect for the authority and independence of all constitutional office holders – for the Rule of Law.

We must not forget that the structure of the CCJ goes further than does that of any court in the Region, and most courts in the Commonwealth, in securing independence from political influence, much less political control. It is at least as free of such local control as is the Judicial Committee of the Privy Council; and freer than any national or sub-regional Court. West Indian people who want such a Court that is beyond the reach of politics must understand – and must be helped to understand – that they have it in the CCJ.

The question, therefore, cannot be avoided: is a regional political leadership that conjures with rejecting the CCJ doing so because it is beyond political reach? I cannot believe that; but. in my own judgment, with the Privy Council no longer a realistic option, the CCJ is the most reliable custodian that West Indians could have of the Rule of Law in the region. Despite this, will we once more, with the gains of oneness in our grasp, forego being West Indian?

To be continued… Look for Part III on Tuesday, February 15, 2011 in Midweek Searchlight.