The Caribbean Court of Justice (CCJ) will sit in Guyana for the first time this week. It is long overdue but welcome nevertheless. Guyana and Barbados were the first countries to accede to the appellate jurisdiction of the Court and our own Justice Desiree Bernard, now retiring, has been one of its first members.
Guyana’s final court of appeal, the Privy Council, was abolished in 1970. The PPP supported the establishment of our Court of Appeal but argued that the Privy Council should be retained for constitutional matters. It was felt that the Guyana judiciary was already being politically subverted and that a window of impartiality was necessary to protect at least the constitutional rights of the Guyanese people. The PPP did not succeed.
The PPP’s strong opposition to the complete abolition of the Privy Council proved to be prophetic. Election laws had already been subverted in violation of the Constitution to remove management of elections from the Elections Commission to the Chief Elections Officer starting from the 1968 elections. The Elections Commission, being thereby constitutionally defanged, was described later as a ‘toothless poodle’ by one foreign observer. Decades of election rigging and other constitutional violations followed 1968.
Court challenges to election rigging and constitutional depredations never took place, although the PNC gleefully dared the PPP repeatedly. The PPP felt that such challenges would result in certain defeat from a captive judiciary and give the regime the opportunity to declare, particularly overseas where it was seeking Third World glory, that judicial imprimatur had been given to elections which had been described by foreign observers as ‘crooked as barbed wire.’ This would have applied to other constitutional violations as well.
Several important cases relating to human, constitutional and fundamental rights attracted the attention of the courts. Hope v New Guyana (High Court 1975, Court of Appeal 1979) opened the way in 1975 for the subversion of press freedom in Guyana, already in full swing, for the next fifteen years. The three trials of Arnold Rampersaud, a PPP activist, between 1977 and 1979 for murder, attracted wide local and international attention and mobilization at what was an attempt to lynch Rampersaud for a murder on weak and sharply contradictory evidence, clearly contrived. This case underlined the political oppression and violence that had been going on in the 1970s and was a harbinger of more to follow the Ballot Box Martyrs, Ohene Koama, and others, the worst being the tragic assassination of Walter Rodney in 1980, one of the most prominent defenders of Arnold Rampersaud.
All of the above was happening in Guyana while Caricom was silent, a less ennobling period of its existence during which it abandoned Guyana and its people to their fate. Most people out of Guyana remained unmoved when the PNC’s flag was flown at the Court of Appeal building in the era of Party Paramountcy or when Justice of Appeal Crane called for the establishment of socialism, the then ruling ideology, even though he said he did not understand what socialism meant. It was in the absence of an independent, final court of appeal, reviewing decisions of Guyana’s appellate court, as is now the case, that untrammeled political violence, authoritarian rule and the violation of civil and constitutional rights could have been sustained unchallenged and unhindered for so many years after Independence.
When the CCJ was proposed, both the Guyana Government under Desmond Hoyte, commendably, and the PPP welcomed it immediately. The Court now exists as a bulwark against the violation of human, civil and constitutional rights in Guyana and the Guyanese people feel a sense of safety, security and confidence in its existence.
There have been many appeals from Guyana to the CCJ on a wide variety of civil matters, including a complicated case involving Roman Dutch law, which is still of limited application only in Guyana. The Shanique Myrie Case, which established the legal principles relating to the vexed question of freedom of travel in the region, stands out as a major development in Caricom by a Court, which by the decision, demonstrated that it is independent, innovative and forward looking. The decisions of the CCJ are leading not only to the development of our own jurisprudence but also to that of the Caribbean. It is influencing positively the environment, norms and standards for legal practice.
All Caricom governments approved the CCJ. Trinidad and Tobago under a past UNC administration even successfully campaigned for the Court to have its seat in Trinidad. As we all know, when the UNC lost office, it changed its mind about supporting the Court in its appellate jurisdiction. The JLP of Jamaica, having got into office, declined to support the CCJ as an appellate court and has continued to do so. In both cases the parliamentary majority without the support of one major party was inadequate to establish the Court. St Vincent rejected it in a referendum.
The CCJ is a shining star in the flickering Caricom project. If the Region is to eventually sign up to the Court in its appellate jurisdiction, the Court needs to ensure that its appellate decisions continue to be of a quality that create an irresistible momentum towards complete acceptance by the people and governments of the Caribbean.