Privy Council Still Our Best Hope for Justice!

There are among us persons who consider the Privy Council a relic of our colonial past. They suggest those of us who wish for its retention as our final court of appeal are old-fashioned, out of synch, unpatriotic. Nothing could be farther from the truth. I stand proud as a defender of the British institution. At least, for the foreseeable future. In my view, it remains our best hope for justice. If “colonial” is the label I must bear to safeguard my right to fairness, then so be it.

The notion of a Caribbean Court of Justice as a replacement for the Privy Council is being sold on the altar of “national pride.” After all, which Caribbean citizen would not feel honored to have his or her brethren sitting on the region’s highest court? But let us resist all emotionalism and face the fact that establishing a Caribbean Court of Justice demands serious debate. That we wish for the retention of the Privy Council should not suggest we have no confidence in the competence and impartiality of Caribbean jurists. On the contrary, I have nothing but the highest regard for, say, current appellate court judge Dennis Byron. Neither do I always question the soundness of the region’s court decisions. Had all the individual islands remained free of political taint, patriotism might’ve been sufficient reason to bring the Caribbean Court of Justice to fruition. Without the smallest hesitation the court would’ve received my vote.  

It is a great pity the actions of a few should cloud the entire legal fraternity. But when a  people’s freedom (in some instances our very lives), is at stake that’s a small price to pay. Let no one doubt there are several glaring examples of partisan selection and omission on our panel of judges. Too many court decisions are affected by political bias. I recall a matter involving Ronald Wally Richardson that was heard before the magistrate Indra Harriprashad-Charles, now a judge of the high court. Even as the matter was still before her, then Prime Minister John Compton took to the airwaves to announce he was fed-up with cases being thrown out of court on legal technicalities.

Who can forget the Yamaha pronouncements by the same prime minister in advance of a coroner’s inquest? There are too many instances where the judicial process did not get underway for fear of political repercussions. I well remember when Mikey Pilgrim was charged with sedition. He was then an opposition MP. By the time the case against him was ready to go before the court Pilgrim had controversially been made “interim prime minister.” Without any explanation as to why the charges were dropped.

When citizens lose confidence in the lower-level courts, why would they be expected to trust the higher level? How can we be expected to believe in justice when there appear to be reasons to believe officials are doing the bidding of behind the scene puppet masters? Do not put it past our politicians to interfere wherever they can. No less a personage than the prime minister of Barbados, Errol Barrow, once referred to certain politicians in the region as “political bandits.” Such individuals have thrived in the Caribbean and they are the ones who will decide who sits on the Caribbean Court of Justice. A chilling, sobering truth!

We must not easily forget the experience of the failed Federation. We must not forget that in our attempts at breaking our ties with the Privy Council it is not the will of the leaders that ultimately must take precedence. Rather, it is the will of the people that must first be considered. Let our political leaders first give the people good reason to trust what they say about the Privy Council and the Caribbean Court of Justice.

What assurances do ordinary citizens have that Barrow’s “bandits” and their apostles would not seek to subvert the course of Caribbean justice? To what extent will each territory have a say in court appointments? Will whatever mechanism finally agreed upon be such that the smaller territories won’t be at the mercy of the larger? How can we be certain that it is national pride, not their own spotty records as politicians, that will motivate their appointments to the courts? Caribbean governments must not be allowed to dazzle and impress us with their convenient notions of nationalism. We must ensure our human rights will not be compromised on the altar of political ambitions. Such respect for sovereignty badge as our politicians seasonably display demands close-up examination. Where was that badge when, save for Barbados, all the governments, like moths to a flame, rushed to embrace the Ship Riders Agreement—without even a word to their constituents?

In support of their Caribbean Court of Justice position the abolitionists posit the view that our jurists are among the world’s most brilliant. The reality is that we, the retentionists, have never argued to the contrary. What we fear is the predictable interference by politicians in the functions of the court. How is the Chief Justice to be selected? Will the process remain as is in the OECS, by the principle of unanimity? But we have seen the result of this particular exercise, with the appointment for at least three years of an acting Chief Justice. One government has a problem with a candidate and another government is offended by the decision of another, and so it goes. One head of government then could throw a spanner in the works. What Velon John once referred to as “the tyranny of one!”

Is the Chief Justice to be appointed by majority vote? Wouldn’t that invite a process not dissimilar to the way the West Indies cricket team is selected? Would the selector, in this case the prime minister, be able to bargain for one of his own? Wouldn’t that result in a compromise court not comprising the best available? What if the best and brightest came from one territory? While it has long been mooted, the idea of a Caribbean Court of Justice really gained momentum following the Privy Council’s decision in the Jamaican case of Pratt & Morgan. Our highest court ruled that keeping an individual on death row for more than five years was cruel and inhuman. You’d have thought this would be the signal for Caribbean governments to reexamine and streamline our judicial apparatus.

Instead, without exception, Caribbean governments launched a concerted attack on the English Law Lords, implying they were too far removed from our culture and not in touch with things Caribbean. Also, that the Privy Council was anti-capital punishment when the regional sentiment was the exact opposite. I submit that the Privy Council’s message was that Caribbean governments were far too lackadaisical in their approach to judicial reform and needed urgently to clean up their act. Before 1994, few outside Jamaica had heard the names Pratt & Morgan—who were charged with the murder of Anthony Messick, a Jamaica Labour Party political activist. The killers were pronounced guilty, a verdict they promptly appealed. The appeal was speedily heard but the Jamaican Court of Appeal gave no reasons for dismissing it. That left the convicted men one last move. They turned to the Privy Council. To petition that body, however, they needed the written decision of the Court of Appeal. Alas, they had to wait three and a half years. In the meantime, they remained behind bars for a further ten years. All told, they were on death row for fifteen years. Even their right to appeal to the United Nations Human Rights Commission was frustrated.

“To execute them now,” the Law Lords stated, “after holding them in an agony of suspense for so many years, would be inhuman punishment.” What I understood the Law Lords to be saying by their decision was that countries that retain capital punishment should accept responsibility for carrying out death sentences within a reasonable time, following all appeals. How can we trust a Caribbean Court of Justice when so much remains wrong with our individual justice systems? How do we reconcile the fact that Justice Monica Joseph was on one prime minister’s say-so denied an extension of tenure, all because he was unhappy about one of the judge’s rulings? How will the politicians satisfy us that the withdrawal of a judicial officer’s work permit on the whim of a dissatisfied prime minister, as transpired in one of the Windward Islands, won’t recur? How can we be assured the appointment of a Chief Justice will not depend on his brother’s political affiliation? And how can we be sure a Chief Justice will not pack the court with cronies?

Considering their history on matters of this nature, would it not be a safe bet that the career of the judge involved in the recent case, The Queen v Taffy Button, is now in limbo? Would some politician blame his submission for the jury’s acquittal of the man charged with the attempted murder of Vere Bird Jr? That’s the reality of our Caribbean situation. How can we talk about a Caribbean Court of Justice when most of us have good reason to be dissatisfied with the justice meted out at the lower rungs of the judicial ladder?

Sample this: Plaintiffs seek interlocutory injunctions for the short-term purpose of preventing someone from doing something. Such injunctions are by their very nature to be handed down promptly. But there are several cases involving local political figures, where the injunctions are not given until months after application. Another of the arguments against the Privy Council is the supposed remoteness of the Law Lords from local events. “De kolcha!” When was the last time one of our judges was observed hanging out at the Lime in Rodney Bay? How often do our high court judges fraternize with regular folk having a good ole Saint Lucian time? How many of us can identify an appellate court judge in the street?

Our judges are as far removed from our reality as are the Law Lords in London. The Caribbean Court of Justice will become a reality only when the man on the street is satisfied politicians will stay away from it. We will accept a Caribbean Court of Justice only when we are certain judges make it to the bench on merit alone—not because of political connections! Until  then . . .

Editor’s Note: The preceding first appeared in The STAR on 14 November 1998. Meanwhile, the 15-2 House will this week go through the motion of debating a CCJ bill that evidently has been decided. The House Speaker is once upon a time no-nonsense STAR contributor Claudius Francis!