The Argument for a Caribbean Jurisprudence

Trinidad and Tobago retain the Privy Council as a court of final appeal. Barbados replaced the appellate jurisdiction of the Privy Council with that of the Caribbean Court of Justice in 2004.

The continued role of the Privy Council has been viewed as controversial by some commentators in the Commonwealth Caribbean. The retention of the Privy Council has been viewed as an unwanted colonial interference in the sovereignty of Trinidad and Tobago. This was evident in media reporting on the topic (see here and here for some examples of the issues raised).

Logistical difficulties are also raised, for example, the physical distance acts as an impediment to justice, as only the very rich, or those on death row who avail of pro bono lawyers, can afford to make the trip to London (Gifford, 2009).

To counter these issues, and to move towards a Caribbean jurisprudence,  a final appellate court for Caribbean nations, the Caribbean Court of Justice (CCJ), was established by treaty in 2001, and began sitting in 2005, in Port of Spain in Trinidad and Tobago. Initially, only Barbados and Guyana allowed appeals to the CCJ. Trinidad and Tobago is currently considering withdrawing from the Privy Council as its final court of appeal for criminal matters, and investing this jurisdiction instead in the CCJ.

Jane Cross (2014) has argued that the CCJ faces the challenge of developing a Caribbean jurisprudence which can reflect the sovereignty of the various nations while also upholding the standards of international human rights.

One issue which has arisen in relation to Trinidad and Tobago and its announcement that it intends to make the CCJ its final appeal court for criminal matters, is a suspicion that this decision is borne of frustration at how the Privy Council deal with death penalty cases. There is a common view that the Privy Council is an ‘abolitionist’ court, and observers of government in Trinidad and Tobago suspect the government seek to find favour in the ‘hanging court’ of the CCJ (see, for example, Rickey Singh, ‘T&T’s cynical approach on accessing CCJ‘, Nation News, 27 April 2012).

However, contrary to this view, the CCJ has tended to rule in sympathy with the judgments expressed by the Privy Council in London. For example, hearing an appeal from Lennox Boyce and Jeffrey Joseph, the CCJ held that as Barbados had ratified the American Convention on Human Rights, and taking into consideration various comments made by members of government as well as past practice, persons sentenced to death had a legitimate expectation that their petitions could be considered by international human rights bodies before their sentence was activated (Attorney General of Barbados v Boyce and Joseph (2006) 69 WIR 104).

Most recently, the CCJ held that the mandatory death sentence for murder in Barbados was unconstitutional, regardless of the presence of a constitutional savings clause. The CCJ therefore cannot easily be read as more sympathetic to retentionist governments.

Bulkan (2015) writes of this case, that ‘Defying predictions that it was going to reverse the perceived abolitionist tendencies of the Privy Council, the Caribbean Court of Justice in its first major death penalty appeal arrived at a similar result’.

The CCJ had also made favourable comments on the decision in Pratt and Morgan, although it indicated it would extend the five year limit in cases where petitions or appeals to international bodies were delayed for longer than 18 months.

Rather than being a ‘hanging court’ then, Caribbean jurisprudence appears to be following a global trend towards greater scrutiny of how the death penalty is administered. This tends to show that the courts of the Caribbean are developing their own strongly human rights-oriented jurisprudence on these issues. Lord Anthony Gifford (2009) has argued that this much should be expected from a region and peoples ‘who achieved their freedom through bitter struggle against the cruellest exploitation which history has known.’

The Caribbean Court of Justice will have to bring some order and uniformity to this contested area, ‘identifying the collective social ethos of the Caribbean people’ (Burnham, 2005).

However, frustration at the Privy Council approach and resistance to attempts to impose reform from without, have led to the stagnation of policy on the issue of the death penalty, in Trinidad and Tobago, and to a lesser extent in Barbados. Many media commentators are critical of the inaction of the governments in resolving the issue. Key to developing a workable Caribbean jurisprudence will be the willingness of government to make decisions.

Margaret Burnham (2014) too writes that the law in these jurisdictions are essentially ‘stuck’, labouring under a common law, inherited from England, much of which was originated in the 19th century, and which is not suitable for modern nations. A programme of law reform is needed. One recommendation for the creation of a coherent Caribbean jurisprudence is the elimination of the ‘savings clauses‘ in the constitutions of these nations. Burnham writes that this is the only clear way forward for the jurisprudence of Caribbean countries.

The supporters of hanging cry out for the law to be observed, but the law prevents hanging unless all these steps are taken. To escape from this paradox, we can go in one of two directions: backwards or forwards.

Lord Anthony Gifford (2009)