DR HAMID GHANY

Deputy Man­ag­ing

Di­rec­tor/Man­ag­ing Ed­i­tor

Yes­ter­day's Guardian ed­i­to­r­i­al raised the is­sue of the Caribbean Court of Jus­tice be­ing ad­vanced as an in­sti­tu­tion that will com­plete the cy­cle of our in­de­pen­dence if im­ple­ment­ed.Si­mul­ta­ne­ous­ly, the ed­i­to­r­i­al al­so ad­dressed the ap­par­ent con­tra­dic­tion of this ar­gu­ment be­ing pre­sent­ed by the fact that the Chief Jus­tice of the CCJ has to be made a mem­ber of Her Majesty's Privy Coun­cil.

The ed­i­to­r­i­al al­so raised the is­sue of Sir Den­nis By­ron, the cur­rent Chief Jus­tice of the CCJ, con­tin­u­ing to hold on to his knight­hood while call­ing on coun­tries in the re­gion to com­plete their in­de­pen­dence process by sev­er­ing ties with the Privy Coun­cil of which he ac­cept­ed mem­ber­ship in 2004.In April 2012 Sir Den­nis By­ron held an en­gage­ment meet­ing in Trinidad at which he said that Cari­com coun­tries should "com­plete their in­de­pen­dence and sov­er­eign­ty by claim­ing the rights to com­plete­ly man­age our ju­di­cial af­fairs."

The ar­gu­ment that was be­ing ad­vanced by Sir Den­nis on that oc­ca­sion was based on an an­ti-colo­nial premise, how­ev­er, the Web site of the CCJ has the fol­low­ing in­for­ma­tion about the for­mer chief jus­tice of the CCJ, Michael de la Bastide:"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."

These post­ings on the of­fi­cial Web site of the CCJ con­firm the point that what we are deal­ing with is a ma­jor con­tra­dic­tion about why the court should be of­fered to the peo­ple of the Caribbean as an au­then­tic fi­nal court of ap­peal so that the coun­tries of our re­gion can "com­plete their in­de­pen­dence and sov­er­eign­ty by claim­ing the rights to com­plete­ly man­age our ju­di­cial af­fairs."

CCJ must an­swer...why its pres­i­dent must be sworn in as a mem­ber of Her Majesty's Privy Coun­cil

Why was it nec­es­sary for the first Pres­i­dent of the CCJ to be "sworn in as a mem­ber of the Privy Coun­cil by Her Majesty Queen Eliz­a­beth II" mere weeks be­fore his as­sump­tion of du­ty as Pres­i­dent and Chief Jus­tice of the CCJ ?The fact that the sec­ond Pres­i­dent and Chief Jus­tice of the CCJ, Sir Den­nis By­ron, is al­so a mem­ber of Her Majesty's Privy Coun­cil and was knight­ed in 2000 must al­so be not­ed.

The CCJ has to an­swer why it is nec­es­sary for its Pres­i­dent and Chief Jus­tice to be made a mem­ber of Her Majesty's Privy Coun­cil. This ques­tion has been raised be­fore and there con­tin­ues to be a stony si­lence from the CCJ on the sub­ject.A lot of this has to do with the fact that the knight­hood is in­deed the gold stan­dard of West In­di­an ac­com­plish­ment in pub­lic af­fairs. Its de­sir­abil­i­ty is wide­spread and the pres­tige that it con­veys comes from the very source that is be­ing crit­i­cised, name­ly the British colo­nial con­nec­tion.

On Ju­ly 26, 2004, Fran­cis Joseph, writ­ing in News­day, re­port­ed as fol­lows:

"Re­tired chief jus­tice Michael De la Bastide, who was nom­i­nat­ed to be Pres­i­dent of the Caribbean Court of Jus­tice (CCJ), has been ap­point­ed a Privy Coun­cil judge. De la Bastide left last night with his fam­i­ly aboard BWIA flight 900 for Lon­don where he will be sworn in to­mor­row by Her Majesty Queen Eliz­a­beth II at Buck­ing­ham Palace. De la Bastide was one of three Caribbean ju­rists who were ap­point­ed to the Privy Coun­cil. The oth­ers were Sir Den­nis By­ron, Chief Jus­tice of the Or­gan­i­sa­tion of East­ern Caribbean States (OECS) and Madame Jus­tice Joan Haynes, of the Ba­hamas. They will join an­oth­er Caribbean ju­rist, Jus­tice Ed­ward Za­c­ca of Ja­maica, who re­cent­ly sat with eight Law Lords in the his­toric death penal­ty ap­peal in March."

Ac­cord­ing to Fran­cis Joseph in his re­port:

"Con­tact­ed last night, De la Bastide told News­day that he was very ho­n­oured to be ap­point­ed to the Privy Coun­cil. He said he was asked some time ago if he would take up an­oth­er ju­di­cial ap­point­ment. 'I said why not and I ac­cept­ed it.' He said he had planned months ago to go to Lon­don on a va­ca­tion with his fam­i­ly. 'It was just co­in­ci­den­tal that the swear­ing in will take place while I am there.' The for­mer chief jus­tice said he re­ceived his let­ter last Wednes­day in­form­ing him of the ap­point­ment and the swear­ing in cer­e­mo­ny. News­day learnt that the let­ter came from British Prime Min­is­ter Tony Blair. De la Bastide be­lieves that the Caribbean must be proud of the three ap­point­ments. 'In the opin­ion of the judges of the Privy Coun­cil them­selves, we have judges com­pe­tent to sit on the fi­nal court of ap­peal. I think it is a trib­ute to the re­gion and for the lawyers and the ju­di­cia­ry.'"

No great de­sire to sep­a­rate from Privy Coun­cil

It is this kind of state­ment that makes it dif­fi­cult to ac­cept the no­tion of re­mov­ing the Ju­di­cial Com­mit­tee of the Privy Coun­cil as the fi­nal court of ap­peal for West In­di­an so­ci­eties. There is so much ho­n­our and pres­tige for judges from this re­gion to be­come mem­bers of the Privy Coun­cil that one won­ders why they would try to sell the idea of ter­mi­na­tion to the pub­lic when they them­selves as­pire to it.

The pub­lic has not shown any great de­sire to sep­a­rate from the Privy Coun­cil, while mem­ber­ship of the Privy Coun­cil is con­sid­ered a great ho­n­our in West In­di­an ju­di­cial cir­cles. This is where the ar­gu­ment ad­vanced by Sir Den­nis By­ron about West In­di­an so­ci­eties com­plet­ing "their in­de­pen­dence and sov­er­eign­ty by claim­ing the rights to com­plete­ly man­age our ju­di­cial af­fairs" falls apart. Lead­er­ship by ex­am­ple is def­i­nite­ly not the pre­ferred method of im­ple­men­ta­tion.

Fran­cis Joseph went fur­ther to say in his 2004 re­port:

"Asked if this ap­point­ment will con­flict with his nom­i­na­tion for the post of Pres­i­dent of the CCJ, De la Bastide said no. He point­ed out that there is no oblig­a­tion on a mem­ber from out­side Lon­don to sit on the Ju­di­cial Com­mit­tee. 'It is re­al­ly an hon­orary one and a mem­ber will sit when it is con­ve­nient to him or when it con­cerns the ju­ris­dic­tion from where he comes.' The for­mer chief jus­tice said the dif­fi­cul­ty of the dis­tance and ac­cess to the Privy Coun­cil which many lit­i­gants ex­pe­ri­ence will ap­ply to the judges. He said judges from the Caribbean sit very rarely on the Privy Coun­cil."

Per­haps the most star­tling as­pect of the in­ter­view with de la Bastide that was re­port­ed by Fran­cis Joseph was the fol­low­ing:

"This ap­point­ment is an en­dorse­ment of our own abil­i­ty to staff a fi­nal court of our own. This ap­point­ment will help strength­en the case for the CCJ. It is very pos­i­tive for the re­gion, it does not di­min­ish my com­mit­ment to the CCJ or my con­vic­tion that all Cari­com coun­tries ought to ac­cept the CCJ as our fi­nal court of ap­peal."

The essence of this state­ment by de la Bastide is that the val­i­da­tion of "our own abil­i­ty to staff a fi­nal court of our own" comes from the fact that an ap­point­ment to the Privy Coun­cil is the con­fir­ma­tion of our worth that we need.

This is the ul­ti­mate ex­am­ple of the CCJ co­nun­drum. On the one hand, the re­gion should sur­ren­der the Ju­di­cial Com­mit­tee of the Privy Coun­cil on the ground of an­ti-colo­nial think­ing, but the val­i­da­tion for the CCJ must come from the very same for­mer colo­nial mas­ter.

Un­der­stand­ing why there is so lit­tle trac­tion for the ar­gu­ment of sev­er­ing the link may lie in the phi­los­o­phy of Er­ic Williams that was ex­pound­ed in a pub­lic lec­ture in Wood­ford Square on Ju­ly 19, 1955:

"The Colo­nial Of­fice does not need to ex­am­ine its sec­ond hand colo­nial con­sti­tu­tions. It has a Con­sti­tu­tion at hand which it can ap­ply im­me­di­ate­ly to Trinidad and To­ba­go. That is the British Con­sti­tu­tion. Ladies and Gen­tle­men, I sug­gest to you that the time has come when the British Con­sti­tu­tion, suit­ably mod­i­fied, can be ap­plied to Trinidad and To­ba­go. Af­ter all, if the British Con­sti­tu­tion is good enough for Great Britain, it should be good enough for Trinidad and To­ba­go."