Former President Jagdeo is praised for assenting to the Caribbean Court of Justice (CCJ) as the final court of appeal for Guyana, replacing the Court of Appeal (COA) in 2005. It is felt that if there were no CCJ, then the appeal of the No-Confidence Motion or the current electoral matter would not have been possible. Democracy would have been hijacked.
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 don’t take instructions from ruling politicians. They are people of impeccable integrity with independence of mind. Their decisions are not guided by ethnicity. Their promotion doesn’t depend on any favourable Government ruling. Government lawyers attached to a case before the PC don’t write the judgments say in a 2-1 ruling. Five Judges (mostly Lords) usually hear appeals (similar to a hearing in front of the CCJ). It is almost impossible to bribe or threaten PC Judges 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 conversations, Jagan opposed the abolition of the PC fearing consequences of a politically directed court. The Judiciary was compromised and the effects are felt till this day.
Jagan saw the significance of an independent outside court. In private conversations, he theorised 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 (colonialism) were he to publicly advocate a return to the PC for impartial justice. At a PCD forum in 1986, Llewelyn John (leader of PDM) proposed the idea of a West Indian Court of Appeal; Dr NK Gopaul, Paul Nehru Tennassee, Jagan, among others, spoke at that forum. The idea would come to fruition in the form of the CCJ (proposed in 2004 and enacted in 2005).
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 a regional court of appeal was not in making. 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 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 returned to Government.
After the PPP won the October 1992 elections, Jagan dismissed the idea of PC being the final court of appeal. Fenton told me that when he met Jagan, the President stubbornly 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: “The country has nothing to fear as my 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 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 the final court in appeals. Jagan would have none of it.
Fortunately, in the interest of judicial independence in the region, an opportunity availed itself in 2004 with the proposal for the creation of CCJ. A visionary Jagdeo immediately 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 Fenton opposed it as a final court for other territories. 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. 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. Fenton felt that impartial justice in West Indian territories would be better served by having the PC as the final court to shield against political directives.
The ruling in the Guyana election matter may well cement the reputation of the CCJ as being protected from political directives. The nation is grateful to Jagdeo for assenting to the CCJ Act that replaced COA in all matters, effective 2005.
Dr Vishnu Bisram