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Sunday, February 12, 2017

The issue of the CCJ emerged following a symposium hosted by the Law Association two Saturdays ago. According to a Guardian report on February 7, 2017:

“Retired Indian Supreme Court Justice Bellur Srikrishna expressed surprise that after 54 years of independence, T&T had still not managed to dispose of the far-off Privy Council in favour of a regional court that already has the backing of all Caricom states, at least in its original jurisdiction on disputes related to the Treaty of Chaguaramas. ‘No sovereign country can allow its judicial decisions to be subject to review by a court of another sovereign country,’ said Srikrishna. ‘This is a democratic republic. You have been independent (over) 50 years. I am surprised that 50 years it has taken. In India we did it in two.’”

The sentiments expressed by Justice Srikrishna are based on India only having experienced a two-year hiatus before they replaced the Privy Council with their own Supreme Court. Indeed, the Indian Constituent Assembly abolished the jurisdiction of the Privy Council in India in September 1949, which came into force in October 1949. By December 1949, the last appeal to the Privy Council from India had been completed.

On the face of it, there seems to be a logical argument to be followed. What is missing is that Indian independence came after a protracted period of struggle between Mahatma Gandhi and the Indian National Congress and the British Government. T&T had no such period of struggle involving the fiercest resistance that non-violent civil disobedience could offer.

Instead, the guiding philosophy for T&T was to mimic the British Constitution as was publicly stated by Eric Williams in his address to an audience in Woodford Square on July 19, 1955. The actual statement made by Williams was:

“Ladies and gentlemen, I suggest to you that the time has come when the British Constitution, suitably modified, can be applied to Trinidad and Tobago. After all, if the British Constitution is good enough for Great Britain, it should be good enough for Trinidad and Tobago.”

That statement by Williams stands in stark contrast to the struggles of Gandhi and his supporters to get Britain out of India and to set up a Constituent Assembly to draft a new constitution. The differences could not be more obvious because India wanted to move away from the British Raj, while T&T wanted to embrace it.

India attained its independence after protracted struggle on August, 15, 1947, and the Constituent Assembly had already set about the task of drafting a constitution. In September 1947, the British West Indies were involved in a meeting at Montego Bay, Jamaica, that had been convened by the Secretary of State for the Colonies, Arthur Creech Jones, to discuss the way forward for a possible Federation of the West Indies.

Indian independence and Federation of the British West Indian colonies were miles apart both literally and figuratively. However, the significance of both cannot be lost on the reader primarily because India had emerged out of a period of protracted struggle against the British, while the West Indies were toying with the idea of how to have a better relationship with Britain. The Federation was formed in 1958 and the original intention of the British Government was to grant independence to it and to that end, a conference was held in London in 1961 to discuss federal independence.

The issue of individual independence arose out of the opposition to the idea of federal independence by the Jamaica Labour Party and Alexander Bustamante. This forced a referendum on the subject in Jamaica in September 1961 in which there was victory for the idea of secession by Jamaica from the Federation.

There was no independence movement in T&T because the plan was to become independent as part of a West Indian federation and not as an individual country. By January 1962, Eric Williams had announced that T&T was now going to seek its own independence rather than to continue in a federation of the remaining nine territories after the departure of Jamaica.

What Justice Srikrishna would have missed in his comparison as to why T&T has taken so long to join the CCJ and leave the Privy Council just like India is the fact that India fought and struggled for its independence. T&T had independence handed to it almost immediately in August 1962 following the demise of the Federation in April 1962. There was no struggle and no mass movement that wanted to separate from the British.

Eric Williams’ philosophy was to have the British Constitution “suitably modified” as our model. Indeed, when the opportunity arose to amend the Constitution in the 1971-76 Parliament in which the PNM had won all of the seats after a no-vote campaign, Williams chose to retain the Privy Council rather than to abolish it.

In comparing the two countries, it must be accepted that India left the Privy Council by political wish, while T&T kept it by political wish.


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