The Jeff Cumberbatch Column – Exercises in Sovereignty, Self-doubt or Apathy?

It is offensive to the sovereignty of independent nations and therefore, politically unacceptable, to have a foreign tribunal permanently entrenched in their Constitutions as their final court.” Sir Isaac Hyatali

“…we recommend that appeals from our jurisdiction to the Privy Council should not only be retained but their retention should be most jealously guarded from assault from any quarter, whether or not Trinidad and Tobago calls itself a monarchy or a republic…”Minority Report of the Constitution Commission of Trinidad & Tobago (1974)

Arguments such as that advanced by Sir Isaac Hyatali in the epigraph above to the effect that retaining the Judicial Committee of Her Majesty’s Privy Council [JCPC] as the apical court in an independent regional jurisdiction is offensive to the notion of sovereignty have been forcefully met with the counter that it is equally an exercise in sovereignty to choose to so retain it, since that choice would at least have been effected after due consideration by the sovereign, even though the ultimate disposal of the issue does not accord with views such as Hyatali’s.

Such a thesis would, no doubt appeal to those in the region, such as last Tuesday’s electorates in Grenada and Antigua & Barbuda that were not of the view in sufficient numbers or, seemingly at all constitutionally, to accede to the Caribbean Court of Justice [CCJ] as the final appellate court for their respective jurisdictions.

Those results, though disappointing to this writer, were scarcely unsurprising. In relatively recent times, electorates have arrived at some outcomes that appear to defy the punditry and, in some cases, with all due respect to the so-called “voice of God” theory; common sense. I include among these, the successful Trump presidential candidature in the US, the Brexit yes vote in England and the recent decision of New Caledonia to remain substantially under French rule. We might also wish include here the 1995 decision by the wide margin of three to one of Bermuda to reject independence from Britain, the negative result of the Bahamian 2016 referendum to eliminate discrimination against women and those in the multi-question Grenadian referendum of that same year. I, somehow, had the sneaking suspicion that the two regional referenda on Tuesday would have fitted comfortably into this company. And so they did.

There will be the usual informed and uninformed analyses of what might have gone wrong, but in the immediate aftermath of Tuesday’s twin rejection of the CCJ, there is a sense of weariness and despair that this current regional experiment is now doomed to hobble into the next quarter of this century on the single leg of the four jurisdictions that currently avail themselves of its appellate jurisdiction.

In his essay “Power to the Caribbean people” published in The Aftermath of Sovereignty: West Indian perspectives, edited by Lowenthal and Comitas, the late Nobel laureate, VS Naipaul, offered the following thesis-

These Caribbean territories are not like those in Africa or Asia, with their own internal reverences that have been returned to them[selves] after a period of colonial rule. They are manufactured societies, labour camps, creations of empire and for long they are dependent on empire for law, language, institutions culture, even officials. Nothing is generated locally, dependence has become a habit…

Whatever may be the cogency of this assertion, it must also be recognized that the tawdry element of partisan politics also had a significant role to play in the respective outcomes on Tuesday. There exists a keen tussle between the lawyer and the politician for being considered as the occupation for which the hottest part of Hades is reserved, but that it might have been considered politically prudent and astute to foil the regionalist ambition to accede to our own court in favour of one created for a British Empire on whom the sun has long set, smacks of crass unthinking opportunism.

At a higher level of discussion, I was driven to wonder in a recent conversation as to what might have influenced the negotiations for the final draft of the text of the Schedule to the Antigua and Barbuda Independence Order (popularly referred to as its Constitution) to so deeply entrench the provision for the JCPC as its final court of appeal. Thus, the Antigua and Barbuda Constitution 1981 stipulates, where relevant, at section 47 (5)-

A bill to alter this section, Schedule 1 to this Constitution or any of the provisions of this Constitution specified in Part I of that schedule … shall not be submitted to the Governor-General for his assent unless

(a) there has been an interval of not less than ninety days between the introduction of the bill in the House and the beginning of the proceedings in the House on the second reading of the bill in that House;

(b) after it has been passed by both Houses of Parliament or, in the case of a bill to which section 55 of this Constitution applies, after its rejection by the Senate for the second time; and

(c) the bill has been approved on a referendum, held in accordance with such provisions as may be made in that behalf by Parliament, by not less than two- thirds of all the votes validly cast on that referendum…

Included among the specified provisions in Part 1 of Schedule 1 is that which confers a right of appeal to Her Majesty in- Council, either as of right or with the leave of the Court of Appeal in certain cases. Was this provision resisted at any stage, seeing that the discussions were about the imminent conferral of sovereignty on the former Associated State? Was its implications clearly understood by the national delegation? Was it discussed at all?

Contrastingly, the Barbados 1966 document seems far more concessionary to the state in question concerning its determination of a final appellate court. According to section 86 of the original 1966 instrument-

Notwithstanding anything contained in Part 1 of this Chapter, Parliament may make provision –

a. for implementing arrangements made, between the Government of Barbados and the Government or Governments of any other part of parts of the Commonwealth relating to the establishment of a court of appeal to be shared by Barbados with that part or those parts of the Commonwealth, and for the hearing and determination by such a court of appeals from decisions of any court in Barbados; or

b. for the hearing and determination of appeals from decisions of any court in Barbados by a court established for any other part of the Commonwealth….

It is not immediately clear what might have contributed to this stark difference in the respective texts, except that they are fifteen years apart.

For us, seemingly, the JCPC also existed, though with nowhere near the degree of permanence and entrenchment accorded to that entity in Antigua & Barbuda and, clearly, Grenada.

In 1976, my quondam lecturer and subsequently Faculty colleague, Ms Dorcas White, published an extended essay rhetorically titled “Jettison the Judicial Committee: You t’ink it Easy?” More than four decades later comes the equally rhetorical response, “No, Dorcas, we know it ain’t!”

Whether owed to popular apathy or an antipathy towards the regionally assembled structure, any jettisoning seems a long way off.

167 comments

  • Hants

    If you think some people who murder innocent have conscience think again … the psychopath and the sociopath are devoid of conscience … so what good would life in prison do to such a person…?

    You rid the world of such people for two basic reasons: (1) it would save taxpayers money …(2) it make certain the person does not have the opportunity to murder again …

    Like

  • “…………. but I was privy to such information because I happened to be born and bred behind one the major police stations in Barbados…”

    Bushie

    Man…… yuh right, yuh…… and I’m now convinced………….um is “Dompey.”

    Like

  • @ Artax,

    Bushie is always right. lol

    Liked by 1 person

  • Sergeant

    I don’t quite remember you being part of the BU membership way back yonder… when OOB gave his input regarding the Christmases of long ago? In any even … you ought to know that respect isn’t freely given … it has to be earned … and I think that I’ve earned my spot here on BU … being one of its first members …

    Liked by 1 person

  • Did the Bar Association really blame the victims/clients of thieving lawyers for hiring THIEVING LAWYERS, really …

    ……and Leslie Haynes actually opened his mouth to caution clients about lawyers with cash flow problems..lol..and he was actually president of the bar association too…that horrible, disgusting repulsive scum….wuhloss..

    Like

  • http://www.nationnews.com/articles/view/choose-lawyers-with-care/

    The Barbados Bar Association should be ashamed of itself that their idiot presidents mouth this nonsense….Leslie Haynes is no longer Bar Association president but he is still ass deep in the same wicked crimes with which he accuses duity lawyers of the Bar for…he still has CGI insurance personal injury cases backlogging the Supreme Court system…cases many of which should not be in the court system, he is still suffering the elderly and other injured who should not be dragged through the court system….but time is longer than twine.

    I have the perfect view and in the right position to watch AND expose when the time is right.

    Like

  • Of course it is Dompey. Did you not notice the “eds” in the strangest places? Besides, David has already exposed that it is Dompey.

    Like

  • @Donna

    Dompey has posted on the blog that his moniker se to be Lexicon. He also gave it away with his favourite ‘my maddah?

    Like

  • CCJ Declares Guyana’s Cross-Dressing Law Unconstitutional

    Tuesday, November 13th, 2018

    The Caribbean Court of Justice (CCJ) ruled that a law in Guyana, which makes it a criminal offence for a man or a woman to appear in a public place while dressed in clothing of the opposite sex for an “improper purpose”, is unconstitutional. The law, Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, is to be struck from the laws of Guyana. The case of Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) v The Attorney General of Guyana began with the arrest of the appellants in February 2009.

    Four of the appellants, who identify as transgender persons, were arrested, convicted and punished for cross-dressing in public. At the time of arrest, McEwan was dressed in a pink shirt and a pair of tights and Clarke was wearing slippers and a skirt. A few hours later, Fraser and Persaud were also arrested by the police and taken to the Brickdam Police Station. At the time, they were dressed in skirts and were wearing wigs.

    Access the full media release here: CCJ Media release 44_2018

    Like

  • @David

    Did you forget Mark Fenty?

    Like

  • @Sargeant

    You are too observant!

    Like

  • I am curious to know why the politicians and Caswell aren’t jumping up and down over this whole new “suite” of legislation the OECD is making Barbados move towards!!

    http://www.caribbean360.com/business/barbados-seeking-oecd-compliance-by-year-end

    Like

  • Deadline is end of the year … standard 15 and 20 year delays don’t sound like they will be acceptable!!

    Like

  • Chances are the legislation will be drafted by the OECD and given to the GOB to rubber stamp!!

    No way Barbadian lawyers can work this fast!!

    They are likely to fall over with giddy head!!

    Like

  • “While stating that Cabinet would be streamlining the policy initiatives today, he added that Government has already engaged the services of a private experienced draftsman to aid the Chief Parliamentary Counsel in drafting the legislative changes.

    Toppin also signalled that a new regime which replaces the existing International Business Companies (IBC), as well as the International Societies with Restricted Liability (ISRL), would be rolled out effective January 1, 2019.”

    Read more: http://www.caribbean360.com/business/barbados-seeking-oecd-compliance-by-year-end#ixzz5WykdpNrW

    “No Stoppin Toppin” expected to come out with another statement on November 20, oh Lord, de OECD like dey got he running hard!!

    Like

  • “…. a private experienced draftsman to aid the Chief Parliamentary Counsel in drafting the legislative changes.”

    ie, no way it can be done here that fast.

    Wonder if the Unions will be objecting to the work permits!!

    Like

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