June 13, 2021

Caribbean nations cling to British court’s coattails

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By Bertram Niles From CGTN.COM
More than 50 years after Britain began divesting itself of its Caribbean colonies, most of them still look to London for justice.

Despite the Caribbean Community (Caricom) of mainly English-speaking nations inaugurating its own supreme court in 2005, the Judicial Committee of the Privy Council, effectively a branch of the UK Supreme Court, remains the ultimate legal authority for countries like Jamaica, which is still a constitutional monarchy, and Trinidad and Tobago, a republic since 1976.

Only four nations have so far joined the appellate division of the Caribbean Court of Justice (CCJ), which is based in Trinidad of all places. Lack of confidence in Caribbean judicial independence along with legislative and political hurdles has hampered progress toward a full embrace of the CCJ, whose third president has just taken the oath of office.

That ceremony took place in Jamaica, the largest of the English-speaking nations, at a time when the 15-member Caricom, which was theoretically modeled after the EU, held its annual midyear summit coinciding with its 45th anniversary.

It gave the opportunity for another bout of gnashing of teeth regarding the CCJ, which also serves as the common market court for the grouping, to which all members have signed up.

Take the prime minister of Belize, which has a Caribbean identity because as the former British Honduras, it is the only English-speaking nation in Central America.

“To this day naysayers remain, and even to this day membership of the court’s appellate jurisdiction is less than optimum,” Dean Barrow said in a lament at the swearing-in ceremony for Justice Adrian Saunders.

Immediate past president of the Caribbean Court of Justice Sir Denis Byron greeting Jeffrey Apperson, vice president of the National Centre for State Courts of the United States ahead of an MOU signing ceremony. /CCJ photo

In a clear pitch for others to join, Barrow added, “Whatever criticisms may still be aimed at the court no one can doubt the breadth of its scholarship and the depth of its reasoning. I say this as one whose administration has suffered several reversals at the court’s hands. I am nevertheless happy to proclaim my complete confidence in the court.”

One of the main fears about the CCJ is the fear of political interference which can often become overbearing in small nation states. But the framers went to great lengths to isolate the court from the dictates of politicians by setting up an independent process for selecting judges and funding.

“As a consequence, the CCJ is the only integration court of its kind financially independent of the largesse of governments and free from their administrative control,” the court trumpets on its website.

Speaking in Jamaica as his successor was taking office, the outgoing court president Sir Dennis Byron, a former judge of the United Nations International Criminal Tribunal for Rwanda, couldn’t hide his disappointment that after seven years on the job, CCJ membership remains puny.

“I have advocated that, apart from the delivery of service to the region in improving access to justice, this could be a symbolic step in closing the circle of our independence, a significant step in the decades-long process of completing decolonization and to sign on to the Caribbean Court with Caribbean judges would share the values, customs, and beliefs of the Caribbean people in developing a Caribbean jurisprudence.”

So far only Belize, Barbados, Guyana and Dominica of the 12 eligible members have acceded (Montserrat is a British territory and Dutch Suriname and Francophone Haiti have different legal traditions).

As Caribbean nations contemplated setting up the CCJ, they first had to push back against suspicions that it was to be a hanging court as the Privy Council in London – made up of judges who do not have to apply the death penalty in their own country – has made it almost impossible for capital punishment to take place in the region. The panel has ruled that the gap between sentence and execution cannot be longer than five years – and successive appeals usually take longer.

But most damaging is that the lingering fear of possible political intrusion and the suspicion that there is a widespread belief that British judges, however distant from Caribbean norms and traditions, will deliver superior justice have not gone away.

In his syndicated newspaper column last weekend, Sir Ron Sanders, Antigua and Barbuda’s ambassador to the United States, said, “The CCJ has shown itself to be as independent and competent as the Judicial Committee of the British Privy Council. The Caribbean Court’s greater qualification is that, as its name indicates, it is ‘Caribbean.’ It is reflective of the region’s own capability and identity.

“Only four countries have so far liberated themselves from the ‘mental slavery’ that Bob Marley lamented. The only thing that would keep the remaining Caricom nations tied to the Privy Council is no doubt about the competence and fairness of the CCJ; it would be the superiority they attribute to others.”

‘Stop loitering’

Still, one must consider that the majority of these nations have kept Britain’s Queen Elizabeth as their head of state with their leaders still swearing allegiance to “Her Majesty, her heirs and successors.”

Last week, the main opposition People’s National Party (PNP) in Jamaica took the opportunity of the Caricom summit to weigh in on the judicial debate by urging the country to “stop loitering on the doorsteps of the Privy Council in the United Kingdom from which we gained our Independence 55 years ago.”

A previous attempt by a PNP-led government to follow its own edict was stymied by the very Privy Council which ruled that making the CCJ the final court would require a two-thirds majority in the country’s parliament, not the ordinary majority that the PNP had secured. The governing Jamaica Labour Party has always tended to be lukewarm to closer Caribbean integration and is unlikely to take the matter further.

Like Jamaica, some nations require special parliamentary majorities to join the court’s appellate jurisdiction; others require referendums. In Antigua and Barbuda and Grenada (for a second time), which are due to hold plebiscites this year, a rejection of the CCJ by voters would likely cast a pall over its future expansion for years to come.


Then US President Barack Obama (center 3L) taking part in a meeting with Caribbean Community (Caricom) leaders in Kingston, Jamaica on April 9, 2015. /VCG Photo.

The CCJ has recently struck down the mandatory death penalty in Barbados as unconstitutional and upheld presidential term limits in Guyana.

Immediate past president of the Caribbean Court of Justice Sir Denis Byron greeting Jeffrey Apperson, vice president of the National Centre for State Courts of the United States ahead of an MOU signing ceremony. /CCJ photo

For more on this story go to; https://news.cgtn.com/news/3d3d774e7a6b6a4e78457a6333566d54/share_p.html

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