Sep 22, 2012 Letters
Guyana is famous for being different from other countries. It was the only country in the Commonwealth which only had one appellate court and this was not only for a year or two, but for 35 long years. The Burnham administration abolished appeals to the Privy Council when it attained republican status in February 1970 and since there was no West Indian Court of Appeal at the time, the Guyana Court of Appeal was the only appellate court – the final court.
Legal luminaries will no doubt agree that many wrong decisions were made by the Guyana Court of Appeal especially in sensitive matters which could not been tested.
The Head of the Judiciary was no longer the Chief Justice, but the Chancellor, a new position created when Sir Kenneth Stoby was brought from Barbados to head the Court of Appeal and the Judiciary. It was said that the then Prime Minister, Forbes Burnham, did not want the Chief Justice at the time Sir Joseph “Bonnie” Luckhoo to be at the helm so he offered Sir Kenneth, a Guyanese and his former Landlord who was the Chief Justice of Barbados the top post and created a new position…Chancellor of the Judiciary. Another first for the Cooperative Republic.
What is also unique in Guyana is that the leader of the opposition must agree to the appointment of both the Chancellor and the Chief Justice since the Constitution was amended to replace “in consultation with” to “agreement” with the leader of the opposition. And because of the amendment, both the Chancellor, Carl Singh and the Chief Justice, Ian Chang have been acting their positions for more than six years since the opposition leader has not agreed to their confirmation.
The Caribbean Court of Justice (CCJ) was inaugurated in April 2005 and Guyana and Barbados became the first two countries to join the regional court in its appellate jurisdiction. Belize went on board in June 2010, and the other Caricom countries are still to abolish appeals to the Privy Council.
It seems to be that at least four more countries will join the appellate division of the Caribbean Court of Justice (CCJ) within the next few months.
I have been following the activities of the CCJ for years even before its inauguration and the latest reports from Wikipedia, the free online encyclopedia, stated that at least two countries Dominica and St. Kitts/Nevis are free to take steps to accede to the CCJ’s appellate jurisdiction during the course of this year since those two states only require a parliamentary majority to join up to the Court. Two other OECS states, St. Lucia and St. Vincent and the Grenadines would need a parliamentary majority approving accession along with a judicial resolution.
I tried to ascertain information as to what is required to obtain a judicial resolution and was informed by a high profile government official that St. Lucia has moved to the Courts for a resolution or clarification and that St. Vincent and the Grenadines has joined in the application/motion. No date has yet been fixed for hearing of this important issue, but the application would be heard in Castries.
Grenada and Antigua and Barbuda would require referenda before being able to accede.
At its last meeting of the OECS Authority – its 54th – it was agreed that although all OECS members are committed to acceding to the CCJ’s appellate jurisdiction as soon as possible, the differing constitutional provisions of each member state meant that simultaneous accession was no longer the preferred option.
The Jamaican Parliament passed a bill in 2004 for the appellate division of the regional court, but the Privy Council sided with the appellants which include the Jamaica Labour Party and the Jamaican Council for Human Rights and declared that the bill was unconstitutional. The Privy Council concluded that the procedure appropriate for an amendment of an entrenched provision of the Constitution was a referendum which should have been followed.
Last January, the new PNP government of Jamaica said that it would be moving to have the CCJ serving both the original and appellate jurisdiction in time for the 50th anniversary of independence, but that date has passed and no such move was made, despite the fact that the current opposition party, the Jamaica Labour Party (JLP), which was opposed, said that it would support the move. The JLP even went further when its foreign affairs minister issued a call for Trinidad and Tobago to sign on to the appellate jurisdiction to mark that country’s fiftieth anniversary which was on August 30 last.
In April 2012, Prime Minister Kamla Persad-Bissessar announced to her Parliament that she intended to abolish criminal appeals to the Privy Council in favour of the CCJ and would be tabling a motion to this affect, but so far this has not been done, despite the fact that the opposition leader Keith Rowley said he would support the move, although he was disappointed that the government was “only going halfway” by planning to adopt the CCJ for criminal appeals only while retaining the Privy Council for civil matters.
It is unfortunate that there is so much delay for countries to rid themselves from the London-based Privy Council to join the CCJ which was established since February 2001, as the final appellate court, despite the fact it has distinguished and competent judges. The current President is Kittian Sir Denis Byron, former Chief Justice of the Eastern Caribbean Supreme Court, who recently replaced Trinidadian Michael de la Bastide, who served seven years as its Head.
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