May 04, 2008

CCJ Michael De La Bastide defends CCJ

Source: Trinidad Express
Sat, 03 May 2008 9:29 PM PDT
It is not true that the judges of the Caribbean Court of Justice have no work to do and spent their time "drinking coffee and reading papers".

President of the CCJ Michael De La Bastide, in a interview at his Henry Street, Port of Spain, office, said the court has been receiving cases from Guyana and Barbados, which have approved the CCJ in both its original and final jurisdiction.

The interview was done shortly after the debate on the CCJ bill in the House of Representatives.
De La Bastide said 14 appeals were filed in 2007 -12 from Guyana and two from Barbados. He stressed, however, that it was the experience of all newly established courts -regional, international and domestic-that it took time for the volume of cases to build. He said this was the case with Canada, when its Supreme Court was established in 1949 and that the same thing happened in New Zealand and the International Criminal Court.

"I have no doubt that as time goes out, even without the accessation of other states, the workload of the court would increase. And I have in mind, the original jurisdiction," De La Bastide stated.

Businesses were beginning to recognise that they have a possibility of getting redress for breaches of the Treaty of Chaguaramas, he said. And, he contended: "If the feeling is that the Caricom member-states are not getting full value for their money from the court, then the answer is to use it."

De la Bastide said it was unfortunate that the decision on whether to transfer appeals from the Privy Council to the CCJ had become so highly politicised. "Fundamentally it should not be a party/political view," he said.

De La Bastide said he was "flabbergasted" by a idea he heard on television (during the debate on the CCJ bill in the Parliament two weeks ago) of using the CCJ as a second appeal court, allowing for final appeals to the Privy Council.

"Is this going to be an act of kindness to litigants? To interpose yet another stage of appeal en route to the final appeal? Is the CCJ to be put on probation and depending on how accurate it can forecast the way in which each case is decided by the Privy Council ... it would then be trusted to make a final decision? he asked.

Speaking in a Jamaican dialect, he quipped that this was "bias against local in favour of foreign".
The CJ president also dismissed statements made during the same debate that the local Court of Appeal generally got it wrong because the Privy Council overturned over 50 per cent of its decision.

"It is based on an irrebuttable presumption that the Privy Council gets it right every time. Despite the great respect I have for their Lordships, that is a presumption that is totally irrational," said De La Bastide, who is himself a member of the Privy Council.

"Apart from the possibility that there may be more than one 'right solution' to a legal question, what may establish one's preference for one (solution), rather than the other, is the extent to which it would favour or be favoured by local conditions," he said.

He noted that some of the Privy Councillors had a knowledge of the handicap they operated under when determining cases for a society with which they were entirely unfamiliar.

De La Bastide, who has been a defender of judicial independence throughout his career, stressed that he remained unrepentant in this regard and pointed to the measures taken to protect judicial independence in the establishment of the CCJ.

He complimented Caricom states and the Heads of Government on the quality of the arrangements made to protect the court from political and other extraneous influence and noted that many judges of regional and international courts were "envious" of these arrangements.

"No member of the Regional Judicial Legal Service Commission owes his seat to any politician or to political connections. The president is appointed by the majority of Heads (of Government). But their choice is restricted by someone recommended by the RJLSC," he stated.

Similarly, he noted, judges can only be removed after an enquiry by a independent tribunal.

Suggesting that the CCJ judgments were of a high quality, De La Bastide said that the West Indian Law Report published by Butterworth in England, which has tended to report only Privy Council judgments, had been reporting many of the judgments of the CCJ. In Volume 69 of last year, five judgments of the CCJ have been selected for reporting, he said.

De La Bastide also said it would be nothing short of a "regional tragedy" were the CCJ not permitted to achieve its full potential.

He stressed that this potential involved the Court fulfilling its "two-fold function of supporting regional integration and of administering justice effectively and appropriately to the peoples of Caricom.

"If the opportunity which the establishment of this court has now created is thrown away, then I fear it may be a long, long time, if ever, it comes again," he said.

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