It is important that Prime Minister Kamla Persad-Bissessar has taken the necessary first initiative to instituting the Caribbean Court of Justice as the final court of appeal on all criminal matters. However, this half-step forward, leaving civil matters to the British Privy Council, bears a resemblance to the Apprenticeship Period of 1834-1838, when the British Government felt that the Africans who had been enslaved for 200 years needed more time to become able to begin their lives as free men and women. To remind those not aware of the history of the Caribbean court, it was mooted by Carib-bean leaders of the ilk of Norman Manley back in the 1940s. Barbados’ Prime Minister Errol Barrow championed it in the 1970s. What is this gradualism about? The claim that foreign investors would want the British court in place to give confidence is illogical to say the least.
Over the decades, this region has produced jurists of the highest standards, who have sat on international courts and been members of the same British Privy Council. If there is some empirical evidence to substantiate the claim of foreign investors wanting a Privy Council, then the Prime Minister has a responsibility to tell the nation of it. But this claim is even more puzzling as the countries being courted for foreign investment, the so-called Brics—Brazil, Russia, India, China and South Africa—are all countries which have their own national courts as evidence that they have faith in sovereign peoples to make decisions for themselves. It should be pointed out too that Chinese firms are present in Barbados (which has adopted the CCJ as its final court); the Bajan government is making serious overtures for tourism and hotel investment contacts in Brazil; and Guyana (which has also accepted the CCJ) has a major foreign-investment programme for its forestry projects and is seeking foreign investors for an oil industry. Further, there are many foreign investors who are operating under the Caricom Treaty regarding the Single Market and Economy, and so are subject to decision-making by the CCJ in its original jurisdiction.
The above makes the PM’s explanation baffling. But the major argument used by the Prime Minister as the rationale to depart from the Privy Council is an unfortunate one. “The situation has been complicated,” she said, “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 Carib-bean appeals in death sentences.” What the Prime Minister is effectively saying is that she and her government expect the CCJ to be a “hanging court,” to assist them in demonstrating to the population that they can do something about crime. Such a rationale could unfairly characterise the CCJ in a negative light. It also overlooks the fact that the appeals in capital cases which go to the Privy Council are not criminal but civil matters, since they are not murder trials, but, rather, concern the constitutional rights of those convicted of murder.
Therefore, as former Chief Justice and president of the CCJ Michael de la Bastide told this newspaper, for the time being, the Privy Council will in fact continue to preside in these matters. Having followed the purely political stance of Basdeo Panday in ignoring a court he championed into existence in government, but abandoned when he lost office, Prime Minister Persad-Bissessar and her Government have now had to search around to rationalise their about-face; hence the resulting inconsistencies. Nonetheless, it is expected that while the Opposition People’s National Movement will point out the flawed logic and the political expediency of the Prime Minister’s arguments, it will support the constitutional amendment needed to make this first step to judicial independence.