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
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?
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?
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.