Privy Council hypocrisy

JUDY KUBLALSINGH-MATTHEWS

THE CARIBBEAN has produced brilliant legal minds for decades and the Caribbean Court of Justice during its some 19 years in operation has, not unexpectedly, delivered its share of bold, progressive judgements. It has also shown its independence in its divergence from the Privy Council in areas of constitutional interpretation, citing its effort to adopt a less “textual” or "restrictive" approach.

As our reliance on the London-based Privy Council to have a final say on Caribbean judicial matters continues to engender debate, it’s clear that intellectual ability is not the issue. At the heart of the scepticism is the problem of trust and confidence.

The anti-colonial rhetoric that often finds its way into the discussion is a most disingenuous one. That the Privy Council should be replaced to complete the cycle of independence, or that our constitutional discourse is necessarily muted or restrained because it is chartered by a foreign voice, reflects attributes of empire or attachment to a colonial past.

It is our governments that have historically fought tooth and nail in the courts to keep oppressive colonial-era laws on the books. In case after case they have defended their power to breach the rights of ordinary citizens and permitted all manner of flagrant human rights violations and abuses.

From appalling prison conditions to police violence and inaction in the face of the most sickening human atrocities, to permitting wealthy investors to treat us as their playthings, to despoiling our natural environment to profit outsiders and themselves, to treating our lands and people as commodities to be bought and sold, to their abysmal failure to protect their citizenry from the trauma of bloodshed that flows every single day right under their watch.

The ongoing impact of colonialism goes much deeper than the question of an apex court. And amidst this corrupt political culture, are we surprised that people are sceptical?

And the judiciary is not above the fray. There have been some embarrassing encounters between the Privy Council and the TT Court of Appeal over the years, with Pratt and Morgan, Guerra and Wallen, and the Glen Ashby cases all involving the infringement of the human rights of the subjects.

Then there were the Muslimeen cases that saw the local courts uphold a pardon, granting the insurgents substantial damages to be paid by the State. It is the Privy Council that overturned, citing the insurgents’ failure to fulfil a condition to end the insurrection promptly after they were pardoned.

There remains a body of opinion that holds the view that in cases involving challenges to the abuse of power by ministers and government officials, the more certain way of justice is to take the fight outside. Courts in the Caribbean have been critiqued as being “unwilling to offend” by striking down the conduct of those who hold high office or wield political power. And oftentimes, if justice is delivered, it comes so late that it favours the party which has unrestrained access to the state coffers to fight its people, some literally to their graves.

In an election case in St Kitts when there was an attempt to change constituency boundaries on the eve of an election, the Privy Council intervened to overrule the decision of the local courts.

In the Antigua Power Company case, the Privy Council intervened to declare that the prime minister had no power to direct the actions of the commissioner of police after the local judges declined to so order.

In the St Vincent Toussaint case, the Privy Council overturned the Court of Appeal, admitting into evidence the prime minister’s statement in Parliament that supported a citizen’s claim for constitutional relief after his property was confiscated by the state. And there are several other kindred cases.

Power struggles between opposing parties have been known to play out in the courtroom and at the ballot box simultaneously, and deep down in the bones of our citizenry there’s a visceral fear that in our small society with its local elites, partisanship may find its way into the conduct of litigation. The Privy Council's perceived freedom from political bias and interference therefore remains an attractive selling point for people who can afford it.

And then there’s that double-edged sword. Distance may come with a bonus. While some judges may be most competent and fair in their dealings with attorneys and the public at large, others carry the burden of inherent biases.

Years ago, Dr Claude Denbow SC wrote: “Local and regional judges in small societies such as ours can approach a particular case with predetermination, bias and hostility towards any particular party involved and the attorney, because of previous clashes, professionally or otherwise."

He called it a “messy scenario which many people ignore, but which is a cold hard fact of professional life commonly attested to by colleagues, both at the senior and junior bar…”

And I may add to this scenario the matter of the who-is-who syndrome that may further account for a court’s injudicious and oppressive handling of matters. The emotionalism that suggests the removal of an institution that has served us for some 60 years without referendum to honour the CCJ’s first president has no place in what is at stake here. The people bear the burden of their emotions too.

Is it practical to have an exchange of judicial sittings between both courts? Can we simply allow appellants the right to choose? Or are they such dumb cows that they must forever be aligned and conformed because someone else knows what’s best for all? Or will this be another winner-take-all scenario where the elitist few get to decide what’s best for all?

Judy Kublalsingh-Matthews is an attorney