Many in Guyana and the Diaspora are thankful that the Caribbean Court of Justice (CCJ) is the final court of appeal for Guyana, replacing the Court of Appeal (CoA) in 2005. They say if there were no CCJ, then appeal of the No Confidence Vote or the current electoral matter would not have been possible – both judicial matters and so many others would have finished at the CoA) and become law. Democracy would have been hijacked. Not surprisingly, Jagdeo, who was President in 2004, has come in for praise for having the foresight to sign on to the CCJ as one of the founding members of its Charter.
Guyana’s final court of appeal during the colonial period and thru February 1970 was the Privy Council (PC) located in London. The PC comprises of judges of erudition and non-political affiliation; they are not influenced by or take instructions from politicians. They are people of integrity with independence of mind. Their decisions are not guided by ethnicity. Their promotion doesn’t depend on any favorable government ruling. Most of the judges are Lords who cannot be bought and five of them usually hear an appeal, similar to a hearing in front of the CCJ. It is almost impossible to bribe or threaten a PC judge on how to rule as compared with say a judge in a local court.
The PC as Guyana’s final court was abolished in 1970 when Guyana became a Republic. Burnham used his magic majority of the 1968 electoral rigging to abolish all appeals to the PC. The act served his interest as matters pertaining to the 1968 election rigging could not be appealed. In private, Jagan opposed the abolition of the PC fearing consequences of a politically directed court. As the years wore on, nothing could be done to change the direction of the court whose rulings (particularly on government related cases) were directed by Burnham. The judiciary was compromised and the effects are felt until this day.
Jagan saw the significance of an independent outside court. In private conversations, he theorized about a return to the PC, which could only have happened if he returned to office. But Jagan was always wary of being branded as friendly to imperialists were he to publicly advocate a return to the PC for impartial justice. At a forum in 1986, Llewelyn John proposed the idea of a West Indian Court of Appeal; Dr. Nand K. Gopaul, Paul Nehru Tennassee, Jagan, among others, spoke at that forum. It would come to fruition in the form of the CCJ.
In discussions in New York between 1989 and 1992, where I was present, including at a GOPIO meet, Jagan embraced the idea of PC replacing the CoA since no other West Indian territory was thinking of a regional court of appeal. When the World Union of Guyanese was formed in NY around 1991 with Dr. Fenton Ramsahoye as International Coordinator, he and a group of us held discussions on the PC replacing the CoA. Fenton was passionate about judicial integrity and independence and felt an outside court was needed to shield judges from political influence and bribery. He agreed to be our emissary to meet Jagan on the matter. They met in Georgetown and Jagan committed to revisit the issue once the PPP returns to government.
After the PPP won the October 1992 elections, Jagan reneged on the commitment of the PC being the final court of appeal. Fenton told me that when he met Jagan, the President sternly stated that “he not returning to the White man’s court”. I met President Jagan at Freedom House in December 1992 and raised the issue with him. He said, “People have nothing to fear as his administration would not interfere in court matters or influence judges. I would not be a dictator. You can trust me”.
Jagan lacked a vision to foresee the possibility of judicial compromise after he was gone. Later on, Fenton informed me that he broached the subject again with Jagan using a different strategy. He advised Jagan again of a backdoor to get the PC as Guyana’s final court of appeal. He proposed that through trade and commercial treaties with Trinidad, PC could serve as final court in appeals. Jagan would have none of it.
Fortunately, in the interest of some kind of judicial independence in the region, an opportunity availed itself in 2004 with the proposal for the creation of CCJ . Jagdeo saw it as ‘a no brainer’ and signed on. Jagdeo displayed a foresight not shown by Jagan on protecting judicial integrity by having an outside independent court.
Fenton credited Jagdeo for accepting CCJ’s jurisdiction as Guyana’s final court of appeal but opposes it as the final court for other territories. Fenton died preferring PC as indeed almost all lawyers (including the late judicial icon Karl Hudson Phillips) in the West Indies as the region’s final court. Sir Fenton said Guyana did not have a choice but to sign on to the CCJ since it did not wish to subscribe to the jurisdiction of the PC. However, he felt that impartial justice in other West Indian territories would be better served by having the PC as its final court to protect against political bias. The ruling in the Guyana election matter may well cement the reputation of the CCJ as being protected from political directives.
Dr. Vishnu Bisram
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