Michael de la Bastide (left), president of the Caribbean Court of Justice (CCJ), is greeted by Senator A.J. Nicholson, Minister of Justice and Attorney-General, moments before the CCJ president made a presentation on the CCJ, during the seventh William G. Demas Lecture at the Rose Hall Resort and Country Club, in Montego Bay, St. James, on Tuesday night. - CLAUDINE HOUSEN/STAFF PHOTOGRAPHER
MICHAEL DE LA BASTIDE, president of the Caribbean Court of Justice (CCJ), has made a stinging attack on last year's ruling by the U.K.-based Privy Council that deemed unconstitutional laws by the Jamaican Parliament to allow for the island's participation in a regional appeals court which he heads. He suggested that the ruling defied judicial logic.
de la Bastide, in a lecture Tuesday night in honour of the late West Indian economist, William Demas, also rapped Caribbean people who continue to hold notions of the inviolability of U.K. judges who make up the Privy Council and fail to repatriate the last portion of the region's independent 'judicial autonomy'.
MOTHER COUNTRY
"Frankly, I am puzzled and disappointed by the governments and peoples of the Commonwealth Caribbean to recognise the urgent need to claim from the mother country the missing portion of independence, that is, judicial autonomy," de la Bastide, a former Trinidad and Tobago chief justice, said in his speech in the north-western Jamaican city of Montego Bay. "I have suggested that it can only be explained by a failure to appreciate the importance and extent of the power which, under the existing arrangements, has been left behind in London."
It is not the first time that the decision of the Privy Council on the Caribbean Court of Justice, which was to replace the U.K. court as the court of last resort for Jamaica and several other Caribbean countries, or the attitude of opponents of the CCJ to the advent of the regional court, has been sharply criticised.
"It has reached a point when a case of that type comes to the board, one can almost predict from the composition of the board what the outcome will be," de la Bastide said. "Any notion of the infallibility of the the Judicial Committee (of the Privy Council) would be shattered by reading what some of its members have had to say about the views of others with which they disagree."
In addition to its civil and criminal components, the CCJ has original jurisdiction in interpreting the treaty under which most Caribbean Community (CARICOM) nations are moving to a regional single market and economy.
But the former aspects of the court have been highly controversial in some countries and last year, when the Jamaican government passed three pieces of legislation to end appeals to the Privy Council and to establish the CCJ as the island's final court, the laws were challenged by the Independent Jamaica Council for Human Rights (IJCHR) and other organisations, including the Opposition.
The Privy Council agreed that Parliament, by simple majority, could abolish appeals to the UK court, which was not entrenched in the constitution. But the law lords also argued that the Privy Council could not be replaced by a court which was not entrenched in the Jamaican constitution and whose judges, like those of the domestic court, did not have constitutional protection.
The UK judges, in their own cases, argued that they were beyond the influence of Jamaican politicians and even as they conceded the efforts of regional governments to insulate the CCJ argued that the agreement establishing the court could be changed.
de la Bastide, in Tuesday night's lecture, harshly attacked the reasoning of the law lords, insisting that it was fundamentally flawed.
"The point on which I respectfully take issue with the judgment is fundamental," he said. "It is that the substitution of a right of appeal to the CCJ for the right of appeal to the Privy Council did not involve the alteration of any entrenched provision of the constitution... Three Acts which were under challenge did not touch the High Court or the Court of Appeal, their jurisdiction or the regime which governs them."
Nonetheless, de la Bastide conceded that the Privy Council's ruling has limited the development of the CCJ, forcing regional countries, with constitutional provisions similar to Jamaica's to be circumspect about how they move forward. Only Guyana, which had abolished appeals to the Privy Council over two decades ago, and Barbados, where there was no political opposition to the new court, are now full members of the CCJ, sending cases there for criminal and civil adjudication.
"There is no question that this decision (by the Privy Council) impacted negatively on the development of the CCJ appellate jurisdiction," de la Bastide said.
He said Jamaica's involvement in the court would have been a "powerful incentive" to smaller eastern Caribbean states to embrace the CCJ.
"Appeals from Jamaica would have provided the court with an opportunity to increase its visibility and dispel the fears of the doubting Thomases in the region," he said.
