SOMETIME OVER the next several weeks or months, the Caribbean Court of Justice (CCJ) will rule, in the case of Barbados, on the constitutionality of executing someone more than five years after his/her conviction of a capital offence.
The court's ruling will, of course, have binding effect only on Barbados and Guyana, the only countries, which have, up to now, acceded to the criminal and civil jurisdiction of the CCJ. But whatever the decision of Mr. Michael de la Bastide and his fellow justices of the CCJ, their ruling will likely have a more profound political than jurisprudential impact, setting the tone of future debate on the accession of other countries to the court.
Indeed, we seriously question whether, in the circumstance, the Barbados Government took the politically most prudent action in bringing this case at this time.
The Bridgetown administration will, of course, say that its concern is not about what other countries do with regard to the CCJ, which is now Barbados' court of last resort. At issue is the larger principle of the law and its application.
But given Barbados' central role as a proponent of the CCJ and its interest of ensuring wider participation, Prime Minister Arthur might have considered the political implications of the matter. Moreover, this matter has come closely on Chief Justice de la Bastide's faux pas with his harsh, public criticism of the U.K.-based Privy Council's decision that legislation for Jamaica's accession to the CCJ was unconstitutional.
Mr. de la Bastide's attack, inclusive of its tone, delivered not in the context of a jurisprudential ruling, would seem to bring the CCJ president into the political arena, thus risking a further depletion of the insulation from narrow, partisan debate which our courts should enjoy, but which the CCJ does not yet command.
It is to be recalled that the jurisprudential competence of Caribbean judges apart, among the claims of opponents of the CCJ is that it is to be a hanging court, established by Caribbean leaders as a counter to rulings by the Privy Council that have limited the ability of the region to carry out capital punishment. Among those actions by the U.K. law lords was their 1993 Pratt and Morgan ruling, a case from Jamaica, in which the British judges held that to carry out an execution five years or more after a sentencing was cruel and inhumane punishment. Regional governments insist that whatever the system's shortcomings, defence lawyers deliberately drag out appeals to benefit from the Pratt and Morgan rule.
Should the CCJ justices agree with Bridgetown's claim that the five-year limit was arbitrary and ultra vires of the Barbadian constitution, the decision is likely to fuel the view of the opponents of the CCJ that it was established with the manifest purpose of turning back the Privy Council's rulings. That will only further sharpen the battle lines, and as was evident from events in Jamaica, there is a significant and influential mass who hold sufficient question marks over the CCJ to stymie its evolution into being Jamaica's court of last resort. There are similar constituencies elsewhere in the region. In this context, rather than a frontal attack on Pratt and Morgan, Barbados, given its interest in having other countries aboard, might have allowed for a more organic development of the jurisprudence of the CCJ.
THE OPINIONS ON THIS PAGE, EXCEPT FOR THE ABOVE, DO NOT NECESSARILY REFLECT THE VIEWS OF THE GLEANER.
