Independent - February 28, 2001
By Raffique Shah
SOME years ago, when the idea of a Caribbean Court of Appeal as the final appellate court in the region was first mooted, I had written several pieces strongly opposed to its establishment at that time. I felt that the Privy Council in England had a long history and near-unblemished record in dispensing justice. And since it was available to us ex-colonials free of cost, we should continue to use it until such time as we were adequately equipped to staff, and more than that, have confidence in our own final appellate court.
What bothered me then, as I guess it did others who opposed the hasty bid to establish the CCA, was not the quality of judicial material we had in the English-speaking Caribbean. There is no question that some of the finest legal minds that have emerged from the English system of jurisprudence can be found right here in the region. I shall not mention names, since that will mean leaving out many eminent attorneys up the islands, some of whom I don’t even know of. But a simple examination of the calibre of judges we have in Caribbean courts, and the quality of equally eminent attorneys at the bar, tells us that we are not short of personnel to man such an appellate court.
There were two issues that loomed large as I considered the push by the region's politicians to rid the region of what they saw as a last vestige of colonialism. Firstly, the cry for the CCA was loudest among those governments that felt the Privy Council was a hindrance to them carrying out the death penalty. Caribbean Caesars saw the Pratt and Morgan ruling (sometime in the mid-1990s) as undermining their popularity among blood-thirsty citizens who, caught up in a web of brutal crimes that seemed to all but swamp us, were crying out for the executioners to get to work, overtime, if necessary.
From Jamaica to Trinidad and Tobago, the crime rate, and in particular murders, had shot up to unprecedented levels. Death Rows up the islands were full-to-overflowing, and within their confines could be found some of the most brutal criminals to have passed this way. Law-abiding citizens wanted them hanged, and speedily too. Of course, the Privy Council did not attempt to hinder that process if it was what West Indians wanted. The fact that capital punishment was abolished in Britain had no bearing on how its members ruled when it came to Caribbean appeals.
What the learned Lords did say was that the time span between conviction and execution should not exceed five years. If it went beyond that, it could be deemed "cruel and unusual punishment", and that should not be encouraged in any society. The challenge for Caribbean governments and their judicial bodies was to ensure that murder cases were speedily disposed of, and that all appeals were exhausted within five years. That was not an impossible target to achieve. But rather than try and put in place mechanisms that allowed for the acceleration of murder trials and appeals, inept governments sought to shield their incompetence by misleading their citizens into believing that the Privy Council did not want them to hang convicted murderers.
My second reason for opposing the CCA at that (and this) time was the fact that two separate but equally nefarious forces were hastily asserting their will on the people of the region. On the one hand, the long arm of the Colombian-controlled drug cartels stretched from South America to the USA and Europe, and in between, they tightened their fists on the Caribbean. They controlled from street pushers to big dealers, and wielded influence among government ministers, policemen and other law enforcement officers at all levels. They had (and I'm certain they continue to so do) in their pockets, too, big businessmen.
What, therefore, could stop them from trying to influence magistrates and judges? In fact, although we have had no such officials charged with complicity or drug-related offences, it is more than passing strange that many such names appeared in reports like the one compiled by the late Justice Garvin Scott. What is most interesting about that report (and many other investigations that have since been done) is that most of the civilians named in it have been charged, convicted and in instances executed for drug-related offences. Others have met violent deaths in the infamous "drug wars". But not a single high official named has been charged, far less convicted or jailed.
Against such a background, what were the chances of a Caribbean Court of Appeal being beyond the reach of the most powerful crime syndicate that has ever stalked the world? Whether it was by offering huge bribes or by naked intimidation, the Pablo Escobars of the cocaine empire could have reached judges in the highest court in this small Caribbean "lake". In contrast, the Law Lords of the Privy Council are almost impregnable.
Another sinister side to the creation of the CCA is Caribbean governments, the "sawdust Caesars" who believe that all, and that includes the judiciary, must bow to their political will. We often think that because institutions like the judiciary have been with us for eons, and because they have functioned independently, they will always continue to do so. Our experiences here over the past few years tell us otherwise. The judiciary has come under intense fire from the executive. Our Chief Justice has been forced to break with convention and publicly defend himself and his colleagues in the face of some very vulgar attacks. In fact, not even individual judges are protected from power-drunk politicians: the swipes that Justice Wendell Kangaloo has faced since he made rather innocuous remarks are evidence of this bid by politicians to beat judges into submission.
It is interesting that some of the very politicians who were promoting the CCA as the one big step that remained to assert our true independence, are today backing off. At least two Caricom governments are not prepared to sign on the dotted line. In Jamaica, Opposition Leader Edward Seaga is calling for a referendum before any such step is taken. And eminent Guyanese attorney Fenton Ramsahoye has cited the case of Guyana (where the Privy Council was removed as the final court) to argue against the introduction of the CCA at this time.
Look, I do not always feel comfortable with our courts, our judges and magistrates. Ever so often I question justice that seems to be tempered by the litigants’ colour of skin or standing in society. I am angered when I see poor people sent to jail for offences that earn the rich slaps on their wrists. Most times when powerful people are charged with certain offences, you can bet your last dollar they will walk. Others will also walk–into stinking cells. There is, too, the vexing question of the rich and powerful having their matters expedited while the poor stew (most times in jail, on remand), as they wait for years for justice.
But if I had to choose between an imperfect judicial system and an unbridled, power-drunk government, give me the former. When I watch Attorney General Ramesh Maharaj, Prime Minister Basdeo Panday, and attorneys whose political allegiances override their professional integrity, launch vicious attacks on the judiciary, I prefer to put my faith, and if need be, my life, in the hands of those who dispense justice.
Copyright © Raffique Shah