Tuesday, September 29, 2009

Caribbean: British law lord sparks debate on colonial-era court

By Peter Richards - IPS
Republished permission Inter Press Service (IPS )copyright Inter Press Service (IPS)
http://www.ipsnewsasia.net/ and http://www.ipsnews.net/

PORT OF SPAIN, Trinidad, Sep 28 (IPS) - Whether or not his words were meant to rekindle debate on the merits of a Caribbean court, the statement by British jurist Lord Phillips that "in an ideal world" the former Commonwealth countries would stop using the Privy Council and instead set up their own final courts of appeal has done just that.

St. Vincent and the Grenadines Prime Minister Dr. Ralph Gonsalves, who is campaigning for a new constitution that would remove the Privy Council as the final court of appeal for his country, said the statement "essentially delivered a notice to quit colonial premises".

"Those in St. Vincent and the Grenadines who hanker for continuation of appeals to the Privy Council have now received, clearly, a proverbial slap in their face," said Gonsalves, whose citizens will vote in a referendum on Nov. 25.

In an interview with the Financial Times of London last week, the British jurist indirectly endorsed the Caribbean Court of Justice (CCJ) when he noted that he and his senior justices spend a ""disproportionate" amount of time hearing legal appeals from independent countries from the Caribbean and other Commonwealth countries.

"It is a huge amount of time. I personally would like to see it reduced," said Lord Phillips, who next month becomes the president of the British Supreme Court.

He questioned whether some Privy Council cases - which have ranged from Jamaican death row appeals to fights over press freedom in Bermuda - needed to be heard by a panel of five of Britain's most senior judges.

In 2001, the Caribbean Community (Caricom) governments established the CCJ amidst concerns by some regional jurists that it may be open to political interference, a criticism dismissed by the Regional Judicial and Legal Service Commission.

The CCJ has both an original and appellate jurisdiction. But while most Caricom countries are members of the original jurisdiction that functions as an international tribunal, hearing disputes arising from the interpretation and application of the Revised Treaty under the Caricom Single Market and Economy (CSME), only Barbados and Guyana have signed on to the appellate jurisdiction.

Barbadian Attorney General Freundel Stuart described regional governments' resistance to the CCJ as "an unpardonable disgrace".

"The quality of jurisprudence coming out of the CCJ is as high as the jurisprudence I've seen coming out of the Privy Council and in some cases it is higher," he said.

"I think it is an unpardonable disgrace that we have now got to the stage where we are basically being chased out of London," he added.

His Trinidad and Tobago counterpart John Jeremie said Lord Phillip's remarks were nothing short of "an embarrassment".

"The position of the government is that we should move with alacrity to our own indigenous final court, the Caribbean Court of Justice. Self-respect and independence demands nothing less," he said in a brief statement to IPS.

But Jeremie knows that despite his pronouncement and those of the Patrick Manning government, which is now staging a series of public debates on a document for a new constitution, Trinidad and Tobago faces an uphill task in receiving the required parliamentary support to take the twin-island republic into the CCJ fold.

Opposition Leader Basdeo Panday, who as prime minister in 1998 signed the original Caricom document paving the way for the CCJ, has had a change of heart and is campaigning for a referendum on the issue instead.

"Replacing the Privy Council with the CCJ is dependent on the confidence of the people, but I want the prime minister to justify to this nation if and why we should get rid of the Privy Council," said Panday.

As far as Panday is concerned, the fact that Lord Phillips has made reference to the heavy workload is an indication "we are going to the Privy Council in droves because we have no confidence in the final court of appeal in our country".

The sub-regional Organisation of Eastern Caribbean States (OECS) says there needs to be a referendum before any move to the appellate jurisdiction of the CCJ.

Further, Antigua and Barbuda's Attorney General Justin Simon has blamed the lack of a public information and education programme, as well as political will, for the sub-region not taking the final step.

"That CCJ is part and parcel of bringing us all closer and ensuring that we have a common legal system, in terms of judicial determinations, judicial decisions and precedents for us to follow and I think it is really unfortunate we have not yet moved forward in respect of establishing the CCJ as the final court of appeal," he said.

Former St. Lucia prime minister Dr. Kenny Anthony, who played a leading role in the establishment of the CCJ, has publicly welcomed statements by Dominica and Belize of their intention to join the CCJ.

"The Caribbean people can do with confidence building," he added.

President of the OECS Bar Association Tapley Seaton said the remarks by Lord Phillips "sits in with the more recent calls that have been made for the CCJ to be fully constituted", while former St. Kitts and Nevis Governor, Sir Probyn Inniss, believes that the CCJ "has become a victim of partisan politics in the Caribbean even though the architects of that court did all that they could, humanly speaking, to try to insulate the court from those very, very influences".

In Jamaica, former attorney general A.J. Nicholson said it was unflattering and regrettable that despite the establishment of the CCJ, Jamaica is now being told to find its own final court.

The ruling Jamaica Labour Party (JLP) has never really embraced the initiative wholeheartedly, even though the island has signed on to the CCJ's original jurisdiction.

In 2005, the Privy Council scuttled Jamaica's attempts at joining the CCJ, ruling that it required a special majority and a referendum to establish a new court of superior jurisdiction to the island's Court of Appeal.

In an editorial on Sunday, the Jamaica Gleaner newspaper said the country faces a conundrum given the fact that it makes a significant financial contribution to the CCJ "from which it derives limited benefit and now there is this signal from Lord Phillips. Clearly, it is time for rational discourse on the matter."

The NATION newspaper in Barbados said a resolution as to whether or not to abandon the Privy Council lies with the political leadership in the region.

"Can this region be a truly independent community when it allows disputes between its citizens to be settled by a court thousands of miles away from our social reality?" the editorial asked.

"Perhaps the Caribbean Court of Justice will become our final appellate court only when, as the late Robert Nestor Marley sang, we emancipate ourselves from mental slavery! Meanwhile, none but ourselves can free our minds!" read the Sunday editorial.

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