JUDY KUBLALSINGH-MATTHEWS

THE CARIBBEAN has produced brilliant legal minds for decades and the Caribbean Court of Justice during its some 19 years in operation has, not unexpectedly, delivered its share of bold, progressive judgements. It has also shown its independence in its divergence from the Privy Council in areas of constitutional interpretation, citing its effort to adopt a less “textual” or "restrictive" approach.

As our reliance on the London-based Privy Council to have a final say on Caribbean judicial matters continues to engender debate, it’s clear that intellectual ability is not the issue. At the heart of the scepticism is the problem of trust and confidence.

The anti-colonial rhetoric that often finds its way into the discussion is a most disingenuous one. That the Privy Council should be replaced to complete the cycle of independence, or that our constitutional discourse is necessarily muted or restrained because it is chartered by a foreign voice, reflects attributes of empire or attachment to a colonial past.

It is our governments that have historically fought tooth and nail in the courts to keep oppressive colonial-era laws on the books. In case after case they have defended their power to breach the rights of ordinary citizens and permitted all manner of flagrant human rights violations and abuses.

From appalling prison conditions to police violence and inaction in the face of the most sickening human atrocities, to permitting wealthy investors to treat us as their playthings, to despoiling our natural environment to profit outsiders and themselves, to treating our lands and people as commodities to be bought and sold, to their abysmal failure to protect their citizenry from the trauma of bloodshed that flows every single day right under their watch.

The ongoing impact of colonialism goes much deeper than the question of an apex court. And amidst this corrupt political culture, are we surprised that people are sceptical?

And the judiciary is not above the fray. There have been some embarrassing encounters between the Privy Council and the TT Court of Appeal over the years, with Pratt and Morgan, Guerra and Wallen, and the Glen Ashby cases all involving the infringement of the human rights of the subjects.

Then there were the Muslimeen cases that saw the local courts uphold a pardon, granting the insurgents substantial damages to be paid by the State. It is the Privy Council that overturned, citing the insurgents’ failure to fulfil a condition to end the insurrection promptly after they were pardoned.

There remains a body of opinion that holds the view that in cases involving challenges to the abuse of power by ministers and government officials, the more certain way of justice is to take the fight outside. Courts in the Caribbean have been critiqued as being “unwilling to offend” by striking down the conduct of those who hold high office or wield political power. And oftentimes, if justice is delivered, it comes so late that it favours the party which has unrestrained access