Settling a West Indies Dispute – Politics and the Caribbean Court of Justice

by R. T. Luke V. Browne 15.APR.11

The Regional Integration and Diaspora Unit has scheduled a panel discussion on the Caribbean Court of Justice for Tuesday, April 19, 2011, at 7:00 pm. I hope to present a useful perspective here.{{more}}

I found truth in the tenth Sir Archibald Nedd Memorial Lecture. The lecture was titled “Is the West Indies West Indian?” and was delivered on January 28, 2011, by Sir Shridath Ramphal in Grenada, where Sir Archibald – a significant Caribbean jurist – was born. The lecture series has afforded distinguished Caribbean men and women the opportunity to share on relevant topics. In 2009, the Prime Minister, Dr. the Honourable Ralph E. Gonsalves, presented in the series on the financial crisis in the Caribbean. Sir Shridath treated different material.

Given its title (“Is the West Indies West Indian?”), the presenter (a West Indian lawyer, politician and public servant with Federation experience), the host (the Grenada Bar Association) and the social context, it is natural that two related matters received treatment in the speech – the Caribbean Court of Justice (CCJ) and the death penalty.

Perhaps the dispute on the CCJ is best captured by the Trinidad and Tobago reality. Sir Shridath, former Secretary-General of the British Commonwealth, may well be appointed to mediate in Trinidad and Tobago between the Chief Justice and the Prime Minister.

At the outset of his presentation, Ramphal acknowledges that the title of his lecture was inspired by the work of T. A. Marryshow. Ninety-five years ago Marryshow, a Grenadian-West Indian, gave us the mantra: The West Indies Must Be Westindian.

Sir Shridath said persuasively:

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.

Still, Mrs. Kamla Persad-Bissessar, the Honourable Prime Minister of Trinidad and Tobago, is hesitant. She recently told BBC Caribbean that she can’t see:

that we are suffering as a result of having the Privy Council and, therefore, why fix something that doesn’t need fixing right now.

This statement is unfortunate. The machine may not be broken, but it is basically outmoded-even for British purposes-and irrelevant. It’s not up for fixing; replacement is long overdue. Ramphal refers to the Privy Council’s “anachronistic jurisdiction” and nails the problem precisely when he states that the Privy Council reflects “contemporary English (and EU) mores and jurisprudence” and not the West Indian way of life.

The situation, though, for Sir Shridath, is apparently complicated by the fact that the death penalty is still on our law books. His preference for the abolition of the death penalty is served by the Privy Council’s rigorous upholding of appeals in death sentence cases. He speculates that a Caribbean Court is subject to regional public sentiment which is influenced by a situation of heightened crime. I don’t doubt that the death penalty could be a useful deterrent in a society not vulnerable to the excesses of genocide.

The dispute in Trinidad and Tobago between the Honourable Prime Minister and the Honourable Chief Justice perhaps depicts a Caribbean state of affairs. While Mrs. Persad-Bissessar argues for the retention of the Privy Council, the Chief Justice believes that the CCJ should be our final appellate Court. That’s why Ramphal, ever the arbitrator, could have a role to play.

But, actually, a third party may not be necessary. I believe that Mrs. Persad-Bissessar is not beyond the reason demonstrated by the Chief Justice in his address to mark the opening of the 2010-2011 Trinidad and Tobago Law Term. The remarks were delivered on September 16, 2010.

The Chief Justice, always respectful of constitutional boundaries, highlighted that he is willing to work within the framework of the law established-or adjusted-by Parliament. He demonstrated that the death penalty is at best a pointless deterrent in the conditions of a low detection, prosecution and conviction rate. The Chief Justice presented evidence from the very Privy Council (perhaps for the comfort of those who would not take our word for it) that debunked the notion that we get a more ‘objective’ justice from those removed from our local milieu. He correctly points out-with examples-that history, cultural norms, intent and policy all inform the judging process then highlights that “English judges are challenged in understanding our behaviour (and the threats and fears we face) in their societal context.” He even highlights the view within many circles that the “development of the criminal law in areas like provocation and good character may have been unduly influenced by a particular philosophical stance on the death penalty.” The inherent lesson might help Sir Shridath Ramphal, the mediator, resolve his own niggling doubts. Context, our West Indian context, is important in every legal arena the Honourable Chief Justice, Mr. Justice Ivor Archie, powerfully demonstrates.

The Chief Justice spoke about our serious legal pedigree; which is a thread Sir Shridath picked up in his January speech. The remarks of these two legal thinkers complement each other. Another common thread is captured in the Chief Justice’s succinct expression: “the procedures for the appointment of its Judges and the financing of the CCJ are being studied and hailed internationally as models for assuring judicial independence”. What we have is a model arrangement that Sir Shridath recognised as: “the most reliable custodian that West Indians could have of the Rule of Law in the region”. I don’t think that Mrs. Persad-Bissessar would deny this truth much longer.

A settlement of our Trinidad and Tobago and West Indies dispute is within view. We are on the verge of proclaiming a more meaningful West Indian independence. Yet the Prime Minister and the Chief Justice can’t join up in a good old Caribbean embrace. There’s still the separation of powers.