The Death Penalty, Death Penalty Appeals and the London-based Privy Council in The Bahamas

Sean McWeeney, QC

Death Penalty 'Unlikely' Without Legal Challenges

By RASHAD ROLLE

Tribune 242 Staff Reporter

rrolle@tribunemedia.net

Nassau, The Bahamas

CONSTITUTIONAL Commission Chairman Sean McWeeney said recent comments about the end of hanging by Court of Appeal justices reflects opposition the London-based Privy Council has to the death penalty.

It reflects, he said, the unlikelihood that the death penalty will be carried out unless substantial changes are made to the legal and judicial system of this country.

Court of Appeal Justices on Wednesday suggested that “hanging is over” as they quashed the death sentence of Anthony Clarke Sr, who was convicted last year of killing his friend Aleus Tilus as part of a contract killing in 2011.

The justices’ statements raised concern among some yesterday who wondered if it set a new precedent for the court as it relates to dealing with death penalty appeals.

When contacted for comment yesterday, Mr McWeeney, a Queen’s Counsel, explained: “The statement (by the justices) was made off the cuff and emerged during the course of give-and-take with counsel. This was not some formal, deeply considered pronouncement. They were correctly characterising the current state of play given the position of the Privy Council.

“Their statements are not fundamentally different from what we in the Constitutional Commission have been saying based on jurisprudence coming out of the Privy Council. There is essentially a philosophical objective guiding this jurisprudence. The Privy Council is philosophically opposed to the death penalty and have curtailed the law to achieve objectives in line with its beliefs. They’ve put a series of obstacles in the way to impede and quite frankly prevent the death penalty from being meted out.”

The mandatory death sentence was changed in 2006 after the Privy Council ruled it was unconstitutional.

In 2011, after a ruling from the Privy Council, the Ingraham administration amended the death penalty law to specify the “worst of the worst” murders which would warrant execution.

A person who kills a police or defence force officer, member of the Departments of Customs or Immigration, judiciary or prison services would be eligible for a death sentence. A person would also be eligible for death once convicted of murdering someone during a rape, robbery, kidnapping or act of terrorism.

In Wednesday’s case, the Court of Appeal suggested there was never going to be a “worst of the worst” case.

“I sympathise with you because there’s never going to be a worst of the worst, because you’re never going to reach that threshold given that there will always be a worse case to follow,” said Court of Appeal President Justice Anita Allen.  

On this issue, Mr McWeeney said: “It’s quite clear (the Privy Council) has been very disingenuous characterising what is the worst of the worst.

“It all points to the fact that the Privy Council has demonstrated consistently that it will not hesitate to find some pretext, some reason, however legally spurious, to achieve their philosophical objective. Against that, Caribbean countries with similar constitutional systems as ours have been looking for ways to overcome this resistance. One thought was to replace the Privy Council with the Caribbean Court of Justice. However, nothing in that system exists to give cause for optimism that their position would be any different from the Privy Council. There have been judgments from that court to lead one to believe their position would be no different. So it’s not going to happen just because you get rid of the Privy Council and put in place the Caribbean Court of Justice.

“That leaves only one possibility and that is to think in terms of amending the Constitution in a way that would tie the hands of the Privy Council,” he added. “Remove the very large discretion the Privy Council has in terms of deciding the circumstances which constitutes ‘worst of the worst’. A solution is to (put in the Constitution) the criteria that would have to be applied on a mandatory basis by the Privy Council, which would define what is the worst of the worst cases. Of course, this could only take place after holding a referendum.”

Mr McWeeney said a draft has been created to amend the Constitution in order to define which crimes must be punishable by death.

“That draft is not something that they are dealing with right now because the focus is on gender equality,” he said, referring to next year’s expected constitutional referendum. “Political parties would have to decide where they want that issue to stand in the queue. It’s certainly not in the cards for this round (of proposed constitutional amendments).”

November 28, 2014

Tribune242

The CARICOM Single Market and Economy (CSME) and the Caribbean Court of Justice (CCJ) - are we ready?

Law and Politics: The CSME and the CCJ - are we ready?
By Lloyd Noel:


Now that we have just celebrated our thirty-seventh anniversary of independence, from the colonial rule of England way back in 1974 – but having maintained our association and membership of the British Commonwealth of nations over all those years – we in the tri-Island State of Grenada, Carriacou and Petite Martinique seem to be on the verge of severing all those ties that assisted us in becoming who we are, and achieving what we have by reason of that association.

And as we are about to travel down that road, to some unknown destination in the new world order, it may be useful to look back from whence we came, to reflect on where exactly we are at this time, and what in fact and in reality we have thus far achieved.

Of course, I must admit up front that I have been very, very fortunate, as far as my personal achievements have been over the years from those colonial days – and some may be tempted to suggest that it is because of my good fortunes during my sojourn in England that I still harbour the fond memories and gratitude of the country and people and their customs.

But I will readily respond to that suggestion by making bold to say, without fear of any contradiction, that the great majority of those thousands of West Indians who travelled to England in those colonial days, to work and start a new life, they too still cherish the opportunities and achievements.

It was while thousands of us were already in the Mother Country in Great Britain, when the first attempt at the unified West Indies came on stream with the Federation of the West Indies in 1958 – but it only lasted for four years (1958-1962), when Jamaica decided to secede, by formally withdrawing from the Federation; and the late P.M. of Trinidad and Tobago, Eric Williams, created new maths by announcing that, because there were ten states in the Federation and Jamaica was withdrawing, then one from ten leaves nought, so Trinidad and Tobago was also moving out, and that was the end.

And it was from then that the rush to political independence by the Big Four started; Jamaica, Trinidad and Tobago, Barbados and Guyana all went on to break their colonial ties with England, although thousands of their nationals were very firmly rooted in the mother country and doing very well for themselves.

From then on the same Big Four states tried to get the same West Indian islands to form an economic union, and the Caribbean Community or CARICOM is what remains of that effort.

Over the years, of course, all the smaller islands went on to achieve their independence – except Montserrat, the BVI and Anguilla -- and that rush to statehood began with Grenada in February, 1974.

Needless to repeat the happenings since then, but now we have the “CARICOM Single Market and Economy” (CSME), and included therein is the “Caribbean Court of Justice” (CCJ), which is the body responsible for the due administration of the Single Market; but more importantly any of the independent states can decide to adopt the CCJ as its final court of appeal, for both civil and criminal and constitutional matters, and by so doing abolish appeals to the Privy Council final court of appeal in England that the West Indies have always been accustomed to, both as colonies and independent states since 1962.

The strange thing about the membership of the CCJ is that, while all the independent states signed on the CSME, only Barbados and Guyana started off using the CCJ as their final court of appeal, and late last year, Belize adopted the court and abolished the Privy Council.

Trinidad and Tobago, where the court has its headquarters, has not adopted it, and the newly elected government that came into office last year are thinking of referring the option to the people for a decision.

And even the Jamaica government is now saying that it is considering establishing its own final appeal court.

Against that state of disunity and disorganisation, our own government is now saying that it will soon be adopting the CCJ as our final court of appeal, to replace the Privy Council in England.

Maybe I missed it whenever it was said, but I have never heard any statement from this government about the preference of the CCJ over the Privy Council, and neither has any opportunity been given to Grenadians to express their opinions or views on the matter. And there can be no doubt whatsoever, that this very fundamental decision, after all those years of the very excellent services we have received from the judges of the highest quality and experience, our people should have been given the opportunity to have their say.

And in the absence of that very basic and highly principled opportunity, I cannot support the government’s decision to go it alone. I hope it is not regretted before too long.

What is also of some importance to the whole concept of regional unity, at the lower level of the Organisation of Eastern Caribbean States (OECS) in particular, is that we have been sharing a common court system, from our associated statehood days since 1967, and we continue to do so after independence right up to the Privy Council.

I have not heard of the same unified position with the other five states on this matter – but maybe I missed it, while they all were busy promoting the latest unitary animal in the recently publicised “OECS Economic Union” – for the free movement of people and capital throughout the six independent states, with the hope that the three remaining colonies of England will sooner or later get the UK’s go-ahead to join the economic union.

To take the confused situation of so many so-called unity groups in our region – all serving the same little population at different levels -- should a company in St Lucia open a business entity in Grenada, and that business has a court case in the Grenada court, it can go to the OECS Court of Appeal and then to the CCJ final court of appeal in Trinidad.

And if the same company has a case in St Lucia, it can go to the OECS Court of Appeal and then must go to the Privy Council in London for a final decision. It would be interesting if the legal issue is similar in both OECS Court of Appeal but the final decisions at the CCJ and the Privy Council differ.

To think that we in these Caribbean Isles have been playing around with this concept of unity for so many years, and for one reason or another the governments cannot get it right -- that must have some bearing on the fact that the politicians who come and go in the various islands all seem to take the position that they alone have all the answers so they never put it to their people to say yea or nay.

We saw what happened in St Vincent, when the government there put the proposed amended constitution to the people and they rejected it – yet in general elections thereafter the same people voted the same government back into power for a third term.

And that is why I agree with the Trinidad and Tobago prime minister, to put the question of whether or not they opt for the CCJ in place of the Privy Council to the people for a decision.

I saw the news item last week that the NDC government plans to hold its party General Council meeting next month, on the 13th March at the Boca Secondary School.

The same meeting was postponed last November, around the time there was the breakdown in unity over the re-shuffle of those three ministers, and one minister actually resigned from Cabinet.

The party general secretary is the minister of tourism, Peter David, and he was removed from foreign affairs back to tourism. He has since been saying that he is rebuilding the party machinery, but the 13th March is a date that is synonymous with the PRG of 1979, not the NDC of Prime Minister Tillman Thomas, on which bandwagon he entered Parliament.

So the questions beg themselves – was the choice of that date a wise decision in the circumstances?

And will it help to rebuild the NDC Party, and at the same time keep the thousands who voted for NDC loyal enough to so vote the next time?

I was chatting with an ex-PRA of the Revolution days, the day after I saw the news item, and he too felt the date of 13th March was much too sensitive at this time – bearing in mind all the events that have taken place.

Time alone will tell, in the months and years ahead.

But like all the issues mentioned above that will affect us as a people in the times ahead, the even bigger question presents itself: are we ready for the possible changes that can result therefrom?

February 22, 2011

caribbeannewsnow

Bahamas Blog International

Is The West Indies West Indian? (Part 2)

By Sir Shridath Ramphal


Nothing speaks louder of CARICOM’s current debilitation than our substantial denial of the Caribbean Court of Justice. The Bar Association of Grenada is host to this Lecture Series, which is a memorial to a great West Indian lawyer. It is poignant that the Inaugural Lecture in this series delivered in 1996 was entitled: Essentials for a West Indies Supreme Court to replace the Judicial Committee of the Privy Council as the final Appellate Court for Commonwealth Caribbean States and Territories. Fifteen years later, it is still apposite that I address this issue when we talk of being West Indian.

In 2001, twelve CARICOM countries decided they would abolish appeals to the Privy Council and establish their own Caribbean Court of Justice, serving all the countries of the Caribbean Community with both original jurisdiction in regional integration matters and appellate jurisdiction as the final court of appeal for individual CARICOM countries. As of now, only Guyana (which had abolished appeals to the Privy Council on independence, believing it to be a natural incident of ‘sovereignty’), Barbados and now Belize have conferred on the CCJ that appellate jurisdiction

Constitutional amendment is required for the abolition of appeals to the Privy Council. In practical terms, this means bipartisan political support for the CCJ. In Jamaica and Trinidad and Tobago (where the Court has its much sought after location) that political consensus does not exist – because the political party now in office in each of those two major regional jurisdictions has turned its back on its regional court. In St Vincent and the Grenadines, a referendum last year rejected the transference of appeals to the CCJ.

The situation has been complicated by the issue of the death penalty, on which the Privy Council, reflecting contemporary English (and EU) mores and jurisprudence, has been rigorous in upholding Caribbean appeals in death sentence cases. Someday, the Caribbean as a whole must accept abolition of the death penalty; I believe we should have done so already; but, in a situation of heightened crime in the region, popular sentiment has induced political reticence. Even so, however, the Privy Council’s anachronistic jurisdiction persists; and the Caribbean Court of Justice remains hobbled in pursuing its enlightened role in Caribbean legal reform.

It is almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters – that the West Indies at the highest level of jurisprudence should be West Indian. A century-old tradition of erudition and excellence in the legal profession of the region leaves no room for hesitancy. As a West Indian I despair, as a West Indian lawyer I am ashamed, that the West Indies should be a major reason for the unwelcome retention of the Privy Council’s jurisdiction within the halls of the new Supreme Court in England. Having created our own Caribbean Court of Justice it is an act of abysmal contrariety that we have so substantially withheld its appellate jurisdiction in favour of that of the Privy Council – we who have sent judges to the International Court of Justice, to the International Criminal Court and to the International Court for the former Yugoslavia, to the Presidency of the United Nations Tribunal on the Law of the Sea (from Grenada); we from whose Caribbean shores have sprung in lineal descent the former and current attorneys general of Britain and the United States respectively.

As I recall this register of West Indian legal erudition, let me pause to pay tribute to the memory of Prof Ralph Carnegie who left us last month – a veritable icon of learning in the law and of service to it – and always a West Indian. As CCJ Judge Winston Anderson acknowledged at his funeral service, he died sadly without attainment of his vision of a fully functioning Caribbean Court of Justice, and fearful of the prospects for the legal monument he strove so hard to build. We owe him a more lasting memorial.

This absurd and unworthy paradox of heritage and hesitancy must be resolved by action. In law, as in ourselves, the West Indies must be West Indian. Those countries still hesitant must find the will and the way to end this anomaly, and perhaps it will be easier if they act as one. The truth is that the alternative to such action is too self-destructive to contemplate. The demise of the Court itself is not an improbable danger when in both Jamaica and Trinidad and Tobago the creation of a local final Court of Appeal is being canvassed. Loss of the CCJ will almost certainly frustrate progress on a Single Market and Economy -- the vision of Grand Anse. We will have begun tearing up the Treaty of Chaguaramas, whose Preamble recites “that the original jurisdiction of the CCJ is essential to the successful operation of the CSME”. If West Indian lawyers, in particular, remain complacent about this absurdity much longer – and I am afraid some are -- we will begin to make a virtue of it, and in the end dismantle more than the Court.

So grave and present is this danger that in August last, five West Indians to whom the region has given its highest honour, the Order of the Caribbean Community, took the unprecedented step of warning publicly “with one voice of the threat being posed to the Caribbean Court of Justice and the Community’s goals more generally”. I was among them. “We warn against these developments” we wrote, “which, as in an earlier era, could bring down the structures for advancing the interests of the people of CARICOM … carefully constructed and nurtured over many decades by sons and daughters of all CARICOM countries”. We were warning of the mire of despond we would stumble into if in this matter the West Indies ceased to be West Indian.

But let me add what we all know, though seldom say: to give confidence to our publics in their adoption of the CCJ as the ultimate repository of justice in the West Indies, our governments must be assiduous in demonstrating respect for all independent West Indian constitutional bodies (like the Director of Public Prosecutions) lest by transference, governments are not trusted to keep their hands off the CCJ. And Courts themselves, at every level, must be manifestly free from political influence and be seen to be sturdy custodians of that freedom. In the end, the independence of West Indian judiciaries must rest on a broad culture of respect for the authority and independence of all constitutional office holders – for the Rule of Law.

We must not forget that the structure of the CCJ goes further than does that of any court in the region, and most courts in the Commonwealth, in securing independence from political influence, much less political control. It is at least as free of such local control as is the Judicial Committee of the Privy Council; and freer than any national or sub-regional Court. West Indian people who want such a Court that is beyond the reach of politics must understand – and must be helped to understand – that they have it in the CCJ.

The question, therefore, cannot be avoided: is a regional political leadership that conjures with rejecting the CCJ doing so because it is beyond political reach? I cannot believe that; but, in my own judgment, with the Privy Council no longer a realistic option, the CCJ is the most reliable custodian that West Indians could have of the Rule of Law in the region. Despite this, will we once more, with the gains of oneness in our grasp, forego being West Indian?

The foregoing is an extract from the Eleventh Sir Archibald Nedd Memorial Lecture delivered by Sir Shridath Ramphal in Grenada on 28 January 2011.

February 9, 2011

Is The West Indies West Indian? (Part 1)

Is The West Indies West Indian? (Part 3)

caribbeannewsnow

Bahamas Blog International

Will Jamaica soon abolish appeals to the Privy Council?

by Oscar Ramjeet:


It seems as if the Bruce Golding administration in Jamaica has had a change of heart and is now contemplating abolishing appeals to the Privy Council so that the country could join the Appellate Division of the Caribbean Court of Justice (CCJ).

The reason for my opinion is that the country's Governor General Sir Patrick Allen earlier this week administered the oath of office to Jamaican born Professor Winston Anderson as a judge of the CCJ in Kingston and that Prime Minister Bruce Golding spoke in appreciative, though measured, terms of the court’s performance in its five years.

The move to administer the oath to a CCJ judge outside Port of Spain is unprecedented, but it has been reported that the request came from Professor Anderson in order to facilitate his mother and other relatives to witness the ceremony.

An editorial in the Jamaican Gleaner states, "It seems likely that Mr Golding will at next month's summit of Caribbean Community (CARICOM) leaders indicate that his government has completed its re-evaluation of Jamaica's absence from the court and is now ready to begin to plan its accession. This is the difficult bit."

The governing JLP two decades ago was in the forefront, along with Trinidad and Tobago, of the establishment of the CCJ.

I recall while I was solicitor general of St Vincent and the Grenadines in the late 1980s, the attorney general of Edward Seaga 's JLP administration, Oswald Harding, was travelling around the region, along with the late Selwyn Richardson, who was the attorney general of the twin island republic, trying to lobby CARICOM leaders to join the court, but the party changed its stand and vehemently opposed the regional court in its role as the court of last resort in criminal and civil matters.

Their concern was mainly the question of the independence of the CCJ, which the JLP continued to advance even after it was clear that the court was insulated against political interference.

The JLP went further when it successfully challenged the constitution at the Privy Council against Jamaica's participation in the CCJ as was then contemplated.

If the JLP is now in favour for Jamaica to join the CCJ as the final appellate court instead of the Privy Council, there should be no problem because the opposition People's National Party is a strong supporter of the CCJ.

The Jamaican government is contributing 27% of the costs to run and administer the CCJ and has not been getting any benefit whatsoever, since it has not yet abolished appeals to the Privy Council.

Belize is the third country to join Guyana and Barbados, and now that Trinidad and Tobago has a new government, legal circles in the twin island republic feel that the new Prime Minister, Kamla Persad Bissessar, a West Indian-trained attorney might be in favour of the CCJ.

She has already indicated that she will fully embrace CARICOM and its members. She is known to be close to CARICOM colleagues and, as a matter of fact, she invited five of them from Barbados and St Kitts to attend Friday's opening of Parliament in Port of Spain.

She recently commented on the poor state of West Indies cricket, and said that every effort should be made to solve the problems between the West Indies Cricket Board (WICB) and the West Indies Players Association (WIPA), since she said that cricket is one of the pillars of Caribbean unity.

St Lucia, Dominica and Grenada are also considering going on board. The Ralph Gonsalves administration in St Vincent and the Grenadines wanted to join also, but it failed in its referendum to amend the constitution on November 25 last.

However, in my view, it is not that Vincentians do not want to remove the Privy Council as the final court, but the referendum was loaded with a series of constitutional amendments, including more powers to the prime minister, and a president to replace the governor general.

It is unfortunate that CARICOM countries take so long or are somewhat reluctant to be a part of the regional system since the CCJ was inaugurated on April 12, 2005.

I was privileged to visit the court while in Port of Spain for the Fifth Summit of the Americans and was impressed with what I have seen -- besides the well equipped libraries, spacious conference room, robing room, etc, I was elated with the courtroom’s appearance, with the most modern telephonic and other fascinating equipment, which is said to be some of the best in the world.

The facilities include a document reader/visual presenter; ability to use laptop computers, DVF/VCR; audio/video digital recording (microphones situated throughout the courtroom); wireless internet access, and audio/video transcripts.

June 19, 2010

caribbeannetnews

Bahamas Blog International

Belize abolishes appeals to Privy Council as of June 1

By Oscar Ramjeet:


It is now official.

Belize will abolish appeals to the Privy Council as of next month, June 1.

An Order to this effect was issued by the country's Prime Minister, Dean Barrow, which was advertised in the last issue of Belize Government Gazette and which stated that the Constitution (Seventh Amendment) Act and the Caribbean Court of Justice Act will come into effect on that date.

The Caribbean Court of Justice (CCJ) will now replace the Privy Council as the highest Court of Appeal for Belize. This will not, however, affect appeals pending before the Privy Council on 31 May 2010.

Belize is the third country to have accepted the Appellate Jurisdiction of the CCJ, which was established on 14 February 2001. The other two are Guyana and Barbados.
The present seat of the CCJ is in Port of Spain, Trinidad and Tobago. However, the Agreement establishing the CCJ provides that the Court may sit in the territory of any other Contracting state as circumstances may require.

Moreover, the CCJ has the most modern technical facilities, including audio and video facilities and applications and interlocutory proceedings can be conducted via these media rather than by attorneys journeying to Port of Spain to make their presentations.

A Belize Government press release issued on Tuesday stated, "The removal of the age-old Privy Council as the highest court for Belize and its replacement by the CCJ represents a major landmark in the constitutional and legal history of Belize and has been widely welcomed among the Caribbean Community."

Guyana severed its link with the London based Privy Council since 1970 when the country attained republican status, and established its own court of appeal -- the Guyana Court of Appeal -- as its final court, and as a result litigants were only allowed one appeal in Guyana for a number of years until April 2005 when the CCJ was inaugurated.

Barbados retained the Privy Council until 2005 when it accepted the regional court as the final court.

Although the CCJ was established in 2001, discussions have been going on since 1988. I recall that Jamaica and Trinidad and Tobago were in the forefront of its establishment, and it is unfortunate that neither of the two countries has up to this date rid itself of the Privy Council. However, both countries tried, but were prevented by a ruling of the said Privy Council that the procedure they adopted was wrong and that they require constitutional amendments.

However, I am optimistic that these two countries, which are considered the big countries in the region will sooner rather than later amend their Constitutions, thus paving way to join the appellate division of the CCJ.

Port of Spain is the headquarters of the CCJ and I feel that the twin island republic will take steps before the end of this year to put the mechanism in place to join the regional court, even if there is a change of government.

As a matter of fact, if Kamla Persad-Bissessar becomes the new prime minister, she being a Caribbean-trained attorney, will be anxious to have the regional court as the final appellate court, and I have no doubt that Patrick Manning will give his support, since he has always been in favour of the move, but the former opposition leader, Basdeo Panday was and still is against it.

Perhaps I should state that, since two thirds of the votes are required in a referendum to change the Constitution, the government must get the support of the opposition before it becomes a reality.

St Lucia, Dominica, and Grenada are also considering joining the CCJ. The Ralph Gonsalves administration in St Vincent and the Grenadines wanted to get on board, but it failed in its referendum to amend the constitution on November 25 last.

However, in my view, it is not that Vincentians do not want to remove the Privy Council as the final court, but the referendum was loaded with a series of constitutional amendments, including more powers to the Prime Minister, and a President to replace the Governor General.

The Antigua and Barbuda government is now engaged in a battle for survival following a recent court decision that declared three seats held by Ministers, including the Prime Minister, vacant on the ground that there were irregularities on election day, and as such the Baldwin Spencer administration is not now in a position to look into the issue.

May 12, 2010

caribbeannetnews

Bahamas Blog International

Courts -- a nation's sovereignty

Tribune242.com editorial:


MANY BAHAMIANS thought that by ridding themselves of the Privy Council as this country's last court of appeal our judicial system could retain the death penalty. Although the Privy Council is still our final court of appeal, and although a large number of Bahamians still favour its retention, it is quickly losing its attraction for those who want to retain the gallows for convicted murderers.

"Hang 'em high!" is still the angry reaction in this country as Bahamians defend capital punishment as the final solution to the growing murder count.

However, it now seems that the Privy Council is not the only stumbling block to retaining the death penalty.

According to Tuesday's Gleaner of Jamaica, the European Union is starting to show its mighty muscles by threatening to withdraw grant funds if Jamaica does not employ an additional Supreme Court judge.

According to The Gleaner Jamaica's Justice Minister Dorothy Lightbourne explained that she had to "follow the dictate of the powerful bloc of countries in order to benefit from grant funds they have provided."

The conditions, the Justice Minister told Parliament last week during the sitting of the joint select committee, have to do with fighting corruption and to improve the justice system. "They have said we should increase judges and we have brought on one judge."

Drawing attention to the notation in the 2010/2011 Estimates of Expenditure, which read: "One additional judge has already been hired to meet the European Union condition," MP Dr Morais Guy commented:

"I would be happy if I am told that this is just a wrong choice of terminology because I cannot see how they are imposing conditions on the sovereign country of Jamaica."

He was told that the money granted by the EU was going towards improving Jamaica's justice system. Guidelines were set out as a condition of the grant. An addition of judges was one of the conditions if funds were to be forthcoming.

And so as the EU could threaten to withhold grant funds over a judge, it could also threaten to withdraw much needed funds if the Bahamas insisted on retaining the death penalty in its legal system.

As a matter of fact this threat was seriously discussed in our private office several years ago by a visiting European ambassador paying a courtesy call on his annual tour of duty.

We believe that this discussion took place around 1993 when the hot topic on the street at that time -- and of much concern to Bahamians -- was the Privy Council's decision that two Bahamians could not be hanged because they had been languishing on death row for more than five years. To hang them after five years would amount to inhumane treatment, the Council ruled. This meant that the sentences of all those then on death row for five years or more had their sentences automatically commuted to life imprisonment. It also set out a time frame for the future.

On being asked public opinion on the abolition of the death penalty in the Bahamas, we explained that we believed that Prime Minister Ingraham was an abolitionist, but that most Bahamians were strongly for its retention. However, if capital punishment remained on the statute books, the Prime Minister would uphold the law. It was then that the ambassador threw down the gauntlet.

And what would happen, he asked, if the EU withdrew all grants from the Bahamas unless capital punishment were abolished?

We replied that the Bahamas would then have to face a serious issue. However, we believed it would be considered a bullying tactic by a powerful European bloc against a small, defenceless nation, especially with the mighty US next door, where many states still used the electric chair to get rid of its murderers. We suggested that they flex their muscles with the US first, and then they could come and talk with the Bahamas.

What is now interesting is that England is becoming nervous about the clout that the European Court of Humane Rights is having over the UK courts.

In defending his country's national sovereignty, the Lord Chief Justice -- Lord Judge -- has declared that the English Supreme Court must have the final say in its own jurisdiction, and that common law -- which is common sense built up over more than 800 years, going as far back as legal memory (1189) -- must be defended and preserved.

April 08, 2010

tribune242

Bahamas Blog International

Delay in joining Caribbean Court of Justice (CCJ) is amazing

By Oscar Ramjeet:


As Belize is about to join the Caribbean Court of Justice (CCJ) as its final court, one of the seven judges and the Court Registrar visited the country and held discussions with local judges and explained the Rules and Procedure of the regional court with practising lawyers.

Their visit coincided with a farewell sitting for Appellate Court Judge, Jamaican-born Boyd Carey.

Justice Adrian Saunders, who was involved in drafting the Rules of the CCJ and Registrar, Dawn Pierre, explained to more than three dozen lawyers at a workshop on Saturday, the rules and procedures to be followed in filing appeals to the regional court.

Belize is the third CARICOM country to get rid of the Privy Council as the final Court, and the first to do so since its establishment, when only two countries, Guyana and Barbados, went on board. It baffles me why the other member states are hesitant and/or reluctant to do so, especially countries like Trinidad and Tobago and Jamaica, which were in the forefront in the setting up of the Court. However, I have been reliably informed that Dominica is in the process of making preparations to join, but that country is now experiencing parliamentary setback since the opposition party is boycotting parliament, claiming irregularities at the last general elections.

Jamaica as well as St Lucia are also considering joining in the near future. The Patrick Manning administration in Trinidad and Tobago is all in favour of the regional court, but in order for that country to join it must get the support of the Opposition, since it requires two thirds of the vote, and the then opposition leader, Basdeo Panday, was not in favour of the move. However, now that there is a new leader of the opposition UNC, in Kamla Persad-Bissessar, who is a West Indian- trained attorney, it is likely there will be a change in that regard.

The CCJ has been established since February 14, 2001, by an agreement signed by a dozen regional governments on February 15, 2003, but the inauguration took place nearly five years ago on April 15, 2005.

The Court has not heard many cases in its Appellate jurisdiction since only two of the 12 countries have accepted the CCJ as the final appellate court, and this is very unfortunate since the Port of Spain based Court has the best court facilities on the planet. I was privileged to visiting the Court and was impressed with what I have seen - besides the well equipped libraries, spacious conference room, robing room etc. I was elated with the court room appearance, with the most modern telephonic and fascinating equipment. The facilities include: A document Reader/Visual Presenter: Ability to use laptop computers, DVF/VCR: Audio/Video Digital Recording (microphones situated throughout the courtroom) ; wireless internet access, and audio/video transcripts.

International jurists who have visited the CCJ and read its judgments generally have a high opinion of the court. One of them, Francis Jacobs, a Privy Councillor and former Advocate General of the European Court of Justice, said that the CCJ is of a high calibre and would be able to take account of local values and develop a modern Caribbean jurisprudence in an international context. He also took a swipe at some Caribbean leaders when he said, "It is regrettable that political difficulties have obstructed acceptance of its Appellate jurisdiction and that the outdated jurisdiction of the Judicial Committee of the Privy Council survives for many of those states.

One of the most respected Caribbean jurists, Dominican born Telford Georges, said before his death that he regarded it as a "compromise of sovereignty" for us to remain wedded "to a court which is part of the former colonial hierarchy, a court in the appointment of whose members we have absolutely no say."

I sincerely hope that steps will soon be taken by those countries that have not yet joined will do so as soon as possible.

March 22, 2010

caribbeannetnews

Bahamas Blog International

More countries showing interest in joining the Caribbean Court of Justice (CCJ)

By Oscar Ramjeet:


It is more than four and a half years since the Caribbean Court of Justice (CCJ) was inaugurated and, so far, no other jurisdiction has joined Guyana and Barbados in accepting the CCJ as the final appellate court.

I read with great interest a statement made by St Lucia Oppositon leader, Kenny Anthony, calling for a region wide simultantous move to join the regional court.

He added that he does not believe that any government should go into amending their particular constitution to facilitate accesssion without securing the agreement of the opposition.

I wonder why when politicians are in the opposition they call on government to take action and when they are in power, they do not comply. Anthony was prime minister when the Court was inaugurated in April 2005. In fact he was present at the lavish ceremony in Port of Spain, and he was in government for 20 long months and he failed to set in motion for his country to remove the Privy Council as the final Court and replace it with the CCJ.

Now he is out of government, he wants co-operation between the government and opposition to join the regional court. This a good move on his part, but he should have done so when he was in government.

There are several factors why some countries are/were reluctant to join the regional court. Jamaica for instance, which was in the forefront in the establishment of the Court, lost interest. Former Attorney General Dr Oswald Harding, who is the current President of the Court of Appeal. who was the main advocate for the court in the late 1980s and early 1990s, said that, although Jamaica is contributing 27% towards the operation of the court, no Jamaican has been appointed as judge, although seven senior well qualified lawyers had applied for the position, and they were all by passed for persons who were less qualified.

He added also the former Prime Minister P.J. Patterson tried to railroad Jamaica's entry and failed to carry out the correct legal procedure to remove the Privy Council as the final Court, which was later struck down by the London-based final court.

The rejection by the electorate in St Vincent and the Grenadines of the November 25 referendum should not be used as a yardstick in the region to measure the thinking of the people whether or not to accept the CCJ as the final Court. I think there were other factors why that referendum failed.

Antigua and Barbuda Attorney General, Justin Simon, made the point that the results of the St Vincent rederendum should not deter other jurisdictions from seeking constitutional changes to accommodate the regional Court.

Belize will soon join the regional court. Jamaica has reconsidered its position and will soon put the mechanism in place to do so and a few OECS states including Grenada, Antigua, and St Lucia are also willing.

Trinidad and Tobago, which spearded the establishment of the Court along with Jamaica, will take some time before it comes on board. The reason being that it must first secure the approval of the Opposition, and Basdeo Panday's UNC is not interested... at least not for now.

Lets hope by the end of next year at least three other jurisdictions will be on board.

December 9, 2009

caribbeannetnews

Bahamas Caribbean Blog International