September 14, 2009

Endorsing the CCJ

Endorsing the CCJ

THIRTY years after becoming an independent nation, the Eastern Caribbean island of St Vincent and the Grenadines is gearing for a national referendum that could also remove a constitutional burden to access the Caribbean Court of Justice (CCJ) as its final appellate institution instead of clinging to the apron string of the British Privy Council.

This could well be seen as a case of finally putting the proverbial cat among the pigeons. Setting, as it does, the political precedent for other countries of the Organisation of Eastern Caribbean States (OECS), as well as Jamaica and Trinidad and Tobago to do likewise.

Some of these countries also require either a two thirds parliamentary majority or endorsement by a national referendum to facilitate ditching the Privy Council in favour of the CCJ.

The Vincentian parliamentary opposition New Democratic Party (NDP) of Arnhim Eustace, a former short-term Prime Minister, has already vowed to vigorously campaign against a "yes" vote at the referendum scheduled for this coming November.

For his part, Prime Minister Ralph Gonsalves, whose governing Unity Labour Party (ULP) already holds a dominant 12-3 parliamentary majority, has warned of a "spirited campaign" to win endorsement of a draft new constitution that provides for a two thirds majority to amend entrenched constitutional provisions.

For different reasons, neither the government of Jamaica's Prime Minister Bruce Golding nor that of Trinidad and Tobago's Patrick Manning, is in the mood at present to consider a referendum to endorse constitutional changes to replace the Privy Council with the CCJ-an issue over which members of the legal profession in both countries are also in disagreement.

In the case of Jamaica, the opposition People's National Party (PNP), which has always been supportive of the CCJ, will pose no problem whenever the Golding administration chooses to demonstrate serious interest in ending the dispensation with the Privy Council in favour of the now more than four-year-old regional court.

However, in Trinidad and Tobago, where there continues to be controversies-some quite fierce and disturbing for a parliamentary democracy-the government of Prime Minister Patrick Manning cannot look forward to any support from the parliamentary opposition United National Congress-Alliance (UNC-A) to have the CCJ as the country's final court of appeal.

For even in their current bitter internal conflicts the warring factions of the UNC-A continue to harbour deep reservations over the independence of the local judicial system and, regrettably, seem disposed to extending such concerns-without evidence-to the CCJ which, ironically, has its operational headquarters in Port of Spain.

This scenario clearly suits Prime Minister Manning, affording him the comfort to openly lament the country's failure to cut ties with the Privy Council, while pursuing no serious initiative to have the CCJ as the country's final appellate institution, for example, in forcing opposition parties to vote for or against the CCJ, or making it a national referendum issue-as now being done in St Vincent and the Grenadines.

More than four years ago, on April 16, 2005 to be precise, the CCJ was inaugurated amid pomp and pageantry in Port of Spain, following settled arrangements for its service to Caricom as a final court of appeal for participating countries as well as serving with original jurisdiction in resolving trade disputes arising from interpretation of the Revised Treaty of Chaguaramas.

At the time of its ceremonial inauguration, Barbados and Guyana were the only two member countries no longer tied to the Privy Council, even as Trinidad and Tobago, the operational headquarter of the CCJ, continued to engage in mere platitudes about its importance.

Today Barbados and Guyana are still the only two Caricom countries that are members of the CCJ, soon to be formally joined by Belize now under the leadership of Prime Minister Dean Barrow.

Now seems a good time to ask whether it is fear of not obtaining required parliamentary majority approval or-as is also necessary in a few cases-the endorsement of a national referendum that stands in the way of accessing CCJ membership as their final court?

Or is it more a case of lack of conviction by some governing political directorates to terminate an inherited colonial dependence on the Privy Council, in favour of the competence and integrity of the CCJ?

There are examples, and not only involving penalty cases, where both governing and opposition parliamentary parties have expediently referenced to prolong vacillations in accessing CCJ membership.

In so doing, they can hardly be unaware of a preference to demonstrate more faith in the judges of a dwindling Privy Council than in the independence, competence and integrity of the judges of our regional court.

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