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."