Former Chief Justice on the CCJ

Former chief justice and past president of the CCJ Michael de la Bastide.

On April 25, 2012, Prime Minister Kamla Persad-Bissessar announced that her administration would be bringing legislation to Parliament to make the Caribbean Court of Justice (CCJ) the islands’ final court of appeal in criminal matters. She also said they would retain the Judicial Committee of the Privy Council (PC) for civil appeals to ensure “investor confidence” using the approach of “caution and gradualism.”

The CCJ was established as the court of last resort in civil and criminal matters in 2001 to replace the London-based Privy Council (PC) within Caricom. It was inaugurated in 2005. So far, only Guyana, Barbados and Belize have replaced appeals to the Privy Council, with the CCJ as the final appellate court.

The Prime Minister told Parliament that “ties to the Privy Council developed complications in particular with respect to the issue of death penalty,” suggesting that this is a major reason for the switch to the regional Port-of-Spain-based court. In this exclusive interview, former chief justice and past president of the CCJ Michael de la Bastide tells Ira Mathur why he thinks the Prime Minister should ‘go the whole hog’ and sever ties with the British-based court entirely. 

Q. What’s your response to the Government’s decision to amend the constitution to remove criminal appeals from the Privy Council and place it under the CCJ’s jurisdiction?

A: While I applaud the decision to transfer the criminal appeals, I deplore the failure to transfer civil and constitutional appeals to the CCJ. There is no justification for not transferring both civil and constitutional appeals to the CCJ. If the CCJ can be relied on to decide criminal appeals competently, what makes them unable or unqualified to decide civil and constitutional appeals with equal fairness. I don’t understand it. Regarding constitutional appeals, it is ludicrous that we can make and amend our constitution but can’t interpret it.

T&T is legally in breach of the obligation to adopt the CCJ under article 39 of the agreement. By transferring only criminal appeals to the CCJ we will continue to be in breach, albeit less so, until we adopt the full jurisdiction. I am hoping that the Opposition will NOT take the position that they are not supporting the legislation unless the government agrees to transfer the whole of the jurisdiction. I agree with those who say half a loaf is better than none at all.

The Prime Minister has said the reason for retaining the Privy Council for civil matters is that it inspires confidence in foreign investors. Do you agree?

The only investors who would favour the Privy Council are from the UK and want the advantage of ‘home ground’. We don’t need to pander to such a suggestion. Why should we allow investors to decide on an issue like this? Investors may have preferred that we retained the monarchy but we didn’t take them on, did we?

Should there be a referendum on the question of this partial departure from the Privy Council?

The constitution does not contain a provision for a referendum on this. There is obviously a majority support for the transfer. When we changed from a monarchy to a republic, which is a more fundamental change, there was no referendum.

Is the CCJ a hanging court?

The people who think it’s going to be a hanging court are going to be sadly disappointed. The CCJ made it clear in the Barbados case of Boyce and Joseph that it is not a hanging court. In the appeal to the CCJ, all seven judges upheld the quashing of the death sentence based on the five-year limitation imposed by the Privy Council on carrying out the death penalty. It is unthinkable that judges trained to make impartial decisions would go on a hanging spree.

One is aware that in T&T there is a strong feeling in favour of reintroducing the death penalty. Some crimes are so brutal, one is shocked. Judges clinically apply constitutional principles that have evolved with the development of human rights jurisprudence. We have an obligation to implement the law. We are not allowed to bend or twist the law to align it to personal or popular beliefs.

If, in T&T, the Privy Council continues to rule on constitutional and civil cases, death-penalty appeals will still go to the Privy Council, since a person’s execution is challenged by a constitutional motion, by a person alleging their constitutional rights are being infringed.

It’s ridiculous to think the move away from the Privy Council to the CCJ will reduce murders. The rate of detection and prosecution is so low, and the witness protection programme so weak, nobody is prepared to give eyewitness evidence.

It has been suggested by a legal luminary that by bringing appeals in constitutional cases which arise out of criminal cases under the jurisdiction of the CCJ could allow the resumption of hangings.

It is possible to craft such an amendment. It depends on how far they want to go. I think they should go the whole hog. The problem is if you start channelling constitutional cases, criminal to the CCJ, civil to the Privy Council, in two directions to two final courts, there is the risk that there may be inconsistency in the decisions they produce.

What systems are in place to ensure the financial and political independence of the CCJ?

The independence of the CCJ has been guaranteed by the arrangements which govern it. The appointment of judges is made by the Regional Judicial Service Commission, composed of persons nominated by non-political bodies, including law faculties of the university (UWI), regional law associations, and civil society.

No commissioners are appointed by politicians or persons subject to political influence. It is funded by a trust fund managed by an independent board of trustees, which has been established through a loan raised by the Caribbean Development Bank.

Is the Privy Council getting an unfair rap as an anti-death penalty court?

The Privy Council is competent, wholly independent, and impeccable when it comes to their approach to cases—unquestionably world-class. But it is my impression that, in death penalty cases, the PC have found it very difficult to put aside their very strong antipathy and aversion to the death penalty and at times have gone overboard and created bad law to avoid having to order the execution of anyone.

For example, there was a very bad case in which a man killed two women. The judge faltered in the summing up by not directing the jury fully on the relevance of his previous good record and the PC, on that ground, quashed the conviction and allowed the appeal, although the prosecution’s case was very strong. In a subsequent case, they found they could not apply the strict rule introduced in the previous case and had to reverse it.

Some say the Privy Council provides our courts with necessary checks and balances against international standards? Are we ready to forgo this?

After 50 years of independence, it is time we remove the trainers from our bicycles and ride our bikes ourselves, with our own checks and balances. We can apply our brakes, pedals ourselves and we don’t need trainers or someone running alongside holding on to our saddles. And many PC judges agree with this. When you take into account how polite and understated the British are, turn up the volume and the message from the Privy Council seems to be ‘Bye Bye’.

But doesn’t the Privy Council ensure a necessary distance from populist politics and political interference?

As a judge for 14 years, seven as chief justice and seven as president of the CCJ, I have never come across in my colleagues any judicial weakness, or lack of resolve or proneness to be swayed by public opinion. We are talking about an elite court selected from the best this region can produce in the judicial field.

If you are telling me we can’t find seven people from the Caribbean, who we can trust not to be sucking up to politicians or swayed by public opinion, it’s an indictment of the Caribbean people. The CCJ provides for nine judges (plus the president), but so far six have been sufficient. When you look at the body of talent here, our judges are on par with the PC. We can match anyone.

Currently a lot of people don’t appeal to the Privy Council because they can’t afford it. If it becomes an affordable regional court of appeal won’t everyone who is aggrieved with the system go to the CCJ, making it as clogged as the rest of the system?

A lot of groundwork has gone into fostering and promoting the readiness of the CCJ and creating systems which will stand the court in good stead, if, and when, more demands are made on them, including three empty places for judges. The court will admittedly be subject to constraints but if it performs as expected, I believe, if it comes to the crunch and the fund falters, Caricom will find it gives value for money and step in.

Shouldn’t we put our house in order, tackle the problems in our judiciary before making the switch?

When I became Chief Justice in June 1995, the backlogs were horrendous. We were able to reduce them significantly but the judiciary gets licks for everything. The judiciary simply doesn’t have the money. We need resources for more assize courts, more judges to staff these courts, support staff, an expanded forensic centre to help unclog the bottleneck and produce timely reports. We need to cut out preliminary enquiries; we need an effective witness protection programme. The longer you take to try a case, the more exposed and vulnerable witnesses are.

Nobody suggests the move away from the Privy Council is going to cure the flaws in our criminal or civil justice system. It will give us a final court of our own so when our legislators make our constitution, our judges will interpret it and not judges five thousand miles away in a country that doesn’t have a written constitution. Why are we apparently competent to enact and amend our own constitution but not competent to interpret it? What does that say about us after 50 years of independence?