In his Sunday column last week, my colleague, Dr Hamid Ghany shared some reflections on the abolition of appeals to the Privy Council and the theme which the Caribbean Court of Justice used as part of its tenth anniversary celebrations. He thinks that justifying accession to the appellate jurisdiction of the CCJ on the basis that it would "complete the cycle of independence" is "faulty and fraught with intellectual contradictions."
It is much better to emphasise the court's modernity, accessibility and relevance to the region, he says. That these are attributes of the CCJ which the Privy Council cannot entirely match, is beyond question. But I do not agree that the proposition that the abolition of appeals to the Privy Council will signal the final, or an important step in our emergence as independent nations, is either faulty or intellectually contradictory.
The Privy Council by and large comprises judges born and bred in the United Kingdom. This means that the final say on important decisions concerning the direction of our system of justice is always made by foreigners. No self-respecting nationalist can claim to live in an independent country when none of its nationals regularly participate in such decisions.
To Dr Ghany's mind, "the real completion of the cycle of our independence is the adoption of republican status," which means that neither Belize nor Barbados can claim to be truly independent even though they have both abolished appeals to the Privy Council.
That may indeed be so, but I find it difficult to accept Dr Ghany's assertion that the abolition of the Queen as our Head of State is a greater signification of independence, than the abolition of appeals to the Privy Council. After all, in those countries which still retain monarchical status, the Queen makes no decisions which impact upon the legal, social, cultural or economic lives of anyone in the Caribbean. Even the person who, as governor general, is appointed to act as the Queen's representative, is selected by local politicians.
Dr Ghany's real concern is with what he discerns to be a contradiction between claiming that accession to the CCJ is needed to complete the cycle of independence, and at the same time advertising on the CCJ's Web site that both the current president and his predecessor were themselves members of the Privy Council.
The contradiction occurs, he says, because accolades, such as knighthood or membership of the Privy Council, are "deeply-desired" among our "political and judicial elites," and "are never surrendered because they define...who we are as a people."
I would be surprised if Justices Byron and de la Bastide, who are universally regarded as formidable jurists in their own right, would consider themselves to be defined by their membership of the Privy Council.
In any event, I fail to see how merely reciting one's accomplishments contradicts the argument that repatriating our jurisprudence would square the circle of independence.
Rather, it seems to me that the very fact that final decisions on what our law is are made by foreigners more defines us a dependent people, than any perceived need to be recognised by the mother country for our personal accomplishments. Indeed, it may very well be that it is the maintenance of such strong ties with our former colonial master which perpetuates what Dr Ghany detects as our continuing need for the anointment which comes from international recognition.
The quicker we get to the stage where we take full responsibility for all our affairs, the quicker we abandon the need to look elsewhere for affirmation.
I am happy that, despite all this, Dr Ghany thinks that our reluctance to join the CCJ's appellate jurisdiction has nothing to do with a lack of self-confidence. I take that to mean that he is confident that the judges we do select for appointment to the CCJ will be well-equipped to do the job. But if so, I do not follow how he reaches the conclusion that the real reason why we are reluctant to embrace the CCJ fully is a lack of political trust.
What he has in mind is the attempt by Prime Minister Manning to remove Chief Justice Sharma from office, and the controversy between former attorney general Maharaj and then Chief Justice de la Bastide which led to the appointment of a Commission of Enquiry into the judiciary. The wounds from all these "judicial/political" battles, he says, "have undermined trust in the conversion from the Privy Council to the CCJ."
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.
No country can claim to be impervious to the conflicts which sometimes erupt between the Executive and the Judiciary. Even though there is no evidence of any such conflict over the ten year life of the CCJ, one can safely assume that it will happen at some time in the future.
But if, as Dr Ghany claims, our reluctance to fully embrace the CCJ has nothing to do with a lack of self-confidence, there is no reason to think that the CCJ will not withstand any such onslaught.
No one suggests that our local judiciary is any less independent or robust in the defence of our constitutional rights as a consequence of the contretemps which erupted in the past. The Constitution worked as it was intended.
After due process, Chief Justice Sharma was exonerated, and the Commission of Enquiry, as such are wont to do, came to nought. And all informed observers agree that the mechanisms which have been established to protect the CCJ from outside interference are the best which are available.
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.
History points inexorably to our adopting our own final Court of Appeal. We should embrace our jurisprudential destiny and stop putting obstacles in the way.