By Raffique Shah
September 18, 2010
IN the midst of the never-ending cacophony that has come to characterise our politics, it was refreshing to hear at least one voice of reason coming from someone who holds high office. I refer to Chief Justice Ivor Archie, whose speech at the opening of the new law term was so different to the din that emanated from Parliament during the ongoing budget debate.
True, the fields of politics and the judicature are poles apart, more so in this country. Politicians are never satisfied unless they control everything, everyone. When the Patrick Manning administration was having difficulty with certain legal matters, it attempted to ride roughshod over members of the judiciary. In the melee, CJ Sat Sharma was treated like a common criminal, the executive sending “storm troopers” to his home in the still of the night.
Anyone with common sense could see even if there was a prima facie case for pursuing legal action against Sharma, there were other, decent approaches that might have borne fruit. As it turned out, Sharma came out smelling roses while the politicians in power looked like latter-day-Nazis.
I know how people’s memories are short, so I need to remind them that only last year, when the PNM government signalled its intention to exercise political control over administrative aspects of the judiciary, Archie J spoke out stridently against any such incursion. In fact, his powerful speech then was a warning to those who would try to encumber the judiciary using their political offices and the public purse.
I am not for one moment suggesting that justice is a cloistered virtue. Far from it, since my first brush with the law and courts at age 24, I have firmly supported the Lord Atkin dictum that came from a Privy Council ruling in a Trinidad and Tobago appeal in 1936 (Ambard vs the AG), “…She (justice) must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
In the local political arena, persistent politicking has long replaced governance. From as far back as in 1986, when the NAR assumed power by the biggest landslide victory ever, we have endured the Parliament Chamber transformed into a continuing political platform. Governments no longer govern. They campaign. Oppositions no longer keep governments in check. They, too, continue campaigning for the next elections.
So even as attending to the people’s business may take some precedence at times, Members of Parliament seem consumed with going after each other’s throats. Look and listen well to the ongoing Budget debate. A minister may address issues for two minutes. He or she then spends ten minutes “pelting blows” at the opposition. Likewise, the latter just nitpick at every measure the new Government outlined in the budget presentation, criticising, condemning, but offering no alternatives.
Such behaviour is nauseating, to say the least. Which is why, when I tuned in to Chief Justice Archie as he addressed his brothers and sisters-in-law, he came across like a breath of fresh air. The mild mannered CJ tackled the raging debate over capital punishment with such aplomb, I don’t know that his reasoning registered with those on both sides of the hanging fence who snarl and snap at each other on a daily basis.
Before he expressed his opinion on capital offences and capital punishment, the CJ praised the case management and mediation systems in the Civil Courts, but bemoaned the overburdened and understaffed Magistrates Courts and High Courts. Imagine if you will, 90,000 cases in one year coming before the Magistrates Courts: madness!
He then addressed two very contentious issues—the case for withdrawing from the Privy Council, and the ineffectiveness of capital punishment as a panacea for the savagery the population has been subjected to for far too long.
On the latter, he said, “…I am convinced that the problem generally is the low detection, prosecution and conviction rate. I am yet to see any persuasive empirical evidence that executions significantly reduce murder or crime rates generally. Undoubtedly it will deter some, and some will argue that there are other philosophical justifications for application of the death penalty…”
The CJ used temperate language where others spew fire and brimstone. He concluded that ultimately, judges will carry out the law of the land, which prescribes capital punishment for murder. But with low detection and conviction rates, what effect would their decisions, or actual hangings, have on the murder rate?
His rationale for replacing the Privy Council with the Caribbean Court of Justice was, for me, the high point of his address. He argued, “After 48 years of supposed independence, it astonishes me that there is even a debate about whether the Caribbean Court of Justice—the CCJ—should be our final Appellate Court. If we have the moral and intellectual capacity to run our own countries in the region, why can we not judge ourselves?”
In the final “rub”, he cited a recent PC ruling in which the law lords disagreed with the local Appeal Court. Archie: “…The senior Law Lord has publicly speculated whether the English tax payer might not have reason to feel aggrieved that he is subsidising the appellate system of countries in which he has no interest and to which he feels no attachment. Do we have to await the final humiliation of being asked to leave?”
Thank you, CJ. I rest your case.