Orin Gor­don

As a teenag­er, I once vis­it­ed the girl­friend at home. The par­ents lurked close by, and the TV vol­ume was sus­pi­cious­ly low. It was bare­ly past 8 pm when her grand­moth­er be­gan loud­ly clos­ing the win­dows, and mur­mur­ing that it was late. I recog­nised a cue to leave when I heard one.

Some British le­gal lu­mi­nar­ies have been less sub­tle than Granny in telling Caribbean coun­tries that it was time to leave…at­tend to their own ju­di­cial af­fairs, in­stead of re­tain­ing the Ju­di­cial Com­mit­tee of the Privy Coun­cil (JCPC) – part of the House of Lords – as their fi­nal court of ap­peal. Most Cari­com coun­tries haven’t tak­en the hint.

Lord An­tho­ny Gif­ford, KC, a for­mer law lord, ad­vo­cat­ed Caribbean ex­it (Cax­it?), ar­gu­ing that on­ly the wealthy could af­ford to send lawyers to Lon­don. Added to flights, ac­com­mo­da­tion and hir­ing le­gal help there, the cost of fil­ing an ap­peal was much high­er. Lord Gif­ford added that a Caribbean court would have bet­ter ge­o­graph­i­cal, con­tex­tu­al and cul­tur­al ad­ja­cen­cy and fa­mil­iar­i­ty with lo­cal cas­es.

An­oth­er judge ar­gued that cas­es from the Caribbean took up too much space in their dock­et – 25 per cent of the JCPC’s case­load. Still, some Caribbean coun­tries be­haved like spous­es who kept go­ing to their par­ents’ house for con­flict res­o­lu­tion, even though they’d moved out long ago.

Caribbean Privy Coun­cil pro­po­nents turn the ad­ja­cen­cy ar­gu­ment around. They ar­gue that there aren’t enough de­grees of sep­a­ra­tion be­tween Caribbean Court of Jus­tice (CCJ) judges and the coun­tries, gov­ern­ments and cas­es on which they have to ad­ju­di­cate.

How­ev­er, there’s no such thing as per­fect ju­rispru­dence. Law lords – leg­is­la­tors, judges and po­lit­i­cal ap­pointees – blur the lines on sep­a­ra­tion of pow­ers by their very ex­is­tence. Through­out their his­to­ry, some have had to re­sign be­cause of scan­dal or malfea­sance.

The un­elect­ed House of Lords is an un­de­mo­c­ra­t­ic base. A ma­jor­i­ty in the UK, 59 per cent, “strong­ly sup­port” or “some­what sup­port” its abo­li­tion, ac­cord­ing to a 2024 YouGov poll. Britain it­self re­placed the Lords as its high­est court in 2009, and most Com­mon­wealth coun­tries ditched the Privy Coun­cil short­ly af­ter in­de­pen­dence. Some Cari­com coun­tries still at­tached have been in­de­pen­dent for 64 years.

The CCJ made one of its most elo­quent ex­is­ten­tial ar­gu­ments when it ruled against an ob­du­rate Guyana gov­ern­ment, first in its re­fusal to recog­nise the out­come of a no-con­fi­dence mo­tion in De­cem­ber 2018 to trig­ger an elec­tion, and then – once the elec­tion fi­nal­ly oc­curred in March 2020 – dig­ging in its heels to re­main in of­fice, de­spite los­ing. The fraught, five-month pe­ri­od be­tween elec­tion day and the win­ning par­ty tak­ing of­fice was one of the most tense in Guyana’s re­cent po­lit­i­cal his­to­ry.

One time I had cof­fee with a lawyer who ar­gues cas­es at the Privy Coun­cil, and I was struck by his Har­ry Pot­ter­ish rev­er­ence for the an­cient in­sti­tu­tion. Plain­ly, he sees his en­coun­ters in West­min­ster as con­fer­ring more pro­fes­sion­al sat­is­fac­tion than they would at an un­re­mark­able build­ing in Port-of-Spain.

Oth­er lawyers have reser­va­tions about the qual­i­ty of UWI le­gal ed­u­ca­tion in the Caribbean, and state out­right that the law lords are high­er qual­i­ty judges. How­ev­er, cur­rent CCJ judges – Pres­i­dent Win­ston An­der­son, Chile Eboe-Os­u­ji and Arif Bulkan, for ex­am­ple – have the kind of wide-rang­ing and im­pres­sive le­gal ed­u­ca­tion that these crit­ics say supreme court judges should ide­al­ly have.

The Caribbean hasn’t been short of world-class ju­rists. Michael de la Bastide of T&T, the first pres­i­dent of the CCJ at its es­tab­lish­ment in 2005. For­mer PM and pres­i­dent ANR Robin­son led the es­tab­lish­ment of the In­ter­na­tion­al Crim­i­nal Court (ICC). On his death in 2014, the ICC hailed his lega­cy as the “pro­tec­tion for all peo­ple against geno­cide, war crimes and crimes against hu­man­i­ty.”

Dr Mo­hammed Sha­habud­deen of Guyana, Patrick Robin­son of Ja­maica and An­tho­ny Car­mona and Althea Alex­is-Wind­sor of T&T were im­por­tant fig­ures in world courts’ ad­ju­di­ca­tion of grave war crimes in the for­mer Yu­goslavia, and Rwan­da.

Guyanese Sir Shri­dath Ram­phal, the late for­mer Com­mon­wealth sec­re­tary gen­er­al, paved the way for the es­tab­lish­ment of the CCJ. His Cari­com-com­mis­sioned 1992 re­port ‘Time for Ac­tion’, rec­om­mend­ed its es­tab­lish­ment, and reg­u­lar­ly chid­ed Cari­com for rou­tine­ly adopt­ing the mind­set that “the race must be run to ac­com­mo­date the pace of the most re­luc­tant run­ners.”

Twelve coun­tries signed on to the es­tab­lish­ment of the CCJ. Five are with­in its ap­pel­late ju­ris­dic­tion. Sir Shri­dath couldn’t have de­scribed it any bet­ter.