CATEGORY:COMMENTARY ------------------------- INSIDE GRENADA Saturday February 24,2007 by Lloyd Noel(Attorney-at-law) IN THESE SHORTENED DAYS AND TIMES - as we heading up to CWC 2007 in our Caribbean Region - it seems that nothing else matters, and or everything else can, or should be put aside or sacrificed, on the altar of Cricket World Cup. No one likes the game more than me, and goodness knows that I would dearly like to see all the venues put on an excellent show - if only to remind the outside World that we do have what it takes to succeed. And now that the selectors of our West Indies team, have fortunately woken up in time - to realize and recognize their folly, in persistently leaving out the best opening Batsmen in the Region, in the person of Devon Smith of Grenada, it makes the expectation of things to come even more palatable. And what poetic justification the semi final in Arnos Vale produced last Friday - when the Windward Islands defeated Barbados, of all the opponents in the KFC Cup, and the homeland of the Selectors Convener, Gordon Greenidge - and the destroyer of the Bajan bowlers was none other than Grenada’s first ever World Cup player, Devon Smith Esq. In the Final last Saturday, which the Windward Islands recklessly gave away to Trinidad and Tobago, he was just as convincing - and suddenly the Commentators were saying things like..... “Devon is the backbone of West Indies World Cup batting.” I wish him and the team the best of luck in March/April 2007. But the importance and the relevance of the foregoing, notwithstanding, there are so many other just as significant National and Regional issues on the front burners - that we have to be as concerned and as vigilant about their outcomes and impact; because when the Final is over on the 28th April at Kensington Oval in Barbados, life has to go on. I am even conscious of adding, as a rider, that if that Final should be between West Indies and whoever, and one of the heroes, in helping West Indies to win its Third World Cup, is Devon Smith Esquire, eventually life will still have to go on afterwards. After the footnote to my article last week, on the issue of Atg. Chief Justice, Brian Alleyne, being re-instated to the list of names, for selection of a substantive Chief Justice of the Eastern Caribbean Supreme Court. I received an email from far away Toronto in Canada, in which the writer was expressing great pleasure - in the news that sanity, and integrity, and ethics in public life, were coming forth in the region; as against petty-mindedness, and the suppression of an Independent Judiciary. The writer expressed the view that Justice Alleyne was highly respected,not just in the Caribbean but throughout Canada - for his fairness and Scholarship, in applying the Law to everyday situations as he finds them. I can add to that, so say the great majority of us Lawyers in the Eastern Caribbean jurisdiction. It is therefore most sincerely expected, that the new thinking at the political tree top in the OECS, will not be distracted or derailed from seeing that justice is manifestly be seen to be done. And talking about justice and the Judiciary, and the Celebration of Forty years since the Eastern Caribbean Supreme Court (ECSC) came on stream; it was formerly the West Indies Associated States Supreme Court, when all the Islands were still Colonies in Association with England. But the name was changed when Six of the Nine States gained their Independence from Britain. Montserrat, the British Virgin (BVI), and Anguilla are still Colonies. In celebrating the anniversary occasion, the Grenada Bar Association has mounted a series of events in the Tri-Island State. And the first event was the holding of a “Symposium” - an evening of discussion on one Subject, on which contributors give varying opinions and commentary - at the newly refurbished Marryshow House (since Ivan) on Thursday February 15th 2007. The subject for discussion was in two parts “Constitutional Rule and the Doctrine of Necessity: 40 Minus 12 - the Unique Grenadian Court Experience.” For those who were not aware, and those who may have forgotten with the passage of 28 years since March, 1979, let me explain. When the PRG ousted the GULP from power, by the March 13th 1979 Revolution - the 1974 Grenada Constitution was suspended, and then purportedly re-instated, with the exception of Appeals to the Privy Council, and the right to Habeas Corpus; in other words, no one could have challenged in Court “Detention without Trial,” and no one could have Appealed to the Privy Council. It is fair to say, that as a natural and legal consequence of the above, the “WIAS Court” which was then Headquartered in Grenada, could not remain and function, so the Heads of Government outside Grenada, withdrew the Court. The PRG, left with no official Court System, to oversee and adjudicate in Civil and Criminal matters, then had no choice but to institute its own Court System - the Grenada Supreme Court. And to give defacto validity to that Court, the “Doctrine of Necessity” was relied on. As to the second part of the topic , because the Grenada Supreme Court remained in existence from March, 1979 to August, 1991, (12 years approximately) it was a Unique Grenadian Court Experience, outside the official Court body. Professor and Dean of the Faculty of Law at UWI (Cave Hill), “Randy” McIntosh was the main Presenter, and Dr. Francis Alexis and myself were on the panel to lead discussion. Let me add up front, that Professor McIntosh and Dr. Francis Alexis are Constitutional experts in the Region and abroad, while your humble Servant has no pretension to expertise in that field. But by historical co-incidence, I was the first Attorney General (A.G.Atg.) Of the PRG in 1979/80, and Dr. Francis Alexis was also an Attorney General (A.G.) of the Constitutional Government that came on stream after General Election in 1984. The Chair-person of the proceedings, Mrs. Trotman-Joseph, herself a former Solicitor General of Grenada - whether wittingly or unwittingly, introduced me as the Attorney General that led Grenada away from Constitutional Government in 1979, and Dr. Alexis as the Attorney General that led Grenada back into Constitutional Government in 1991. Not an entirely factual truism, but it created a good basis for the discussion. What was un-usual about the night’s proceedings, was that the large audience was really involved in the discussion, and the two Constitutional experts were firing direct pot shots at each other at a highly intellectual level, and people seemed well prepared to stay on a lot longer. But even more interesting, was that the next day I had so many approaches about the topics, and request for further clarification, that I had to oblige at this level, in so far as my knowledge and experience allow. Professor McIntosh was saying, that the Courts in Grenada - at first instance and Appeal levels - were wrong in holding that the PRG’s authority was un-constitutional, yet at the same time the Grenada Supreme Court that the PRG instituted was valid - on the basis of the Doctrine of Necessity. He was insisting that the Doctrine of Necessity can only be implemented by a valid and Constitutional Government, or valid Agent or Agency of such a Government. He further submitted, that the Governor General, Sir Paul Scoon, who was purportedly retained by the PRG as the Queen’s Representative, was not a valid Agency - because that was in direct contradiction with the Constitutional Agency of the Governor General immediately before the Revolution. What is more, said he, the Grenada Seventeen, at the time of those trials and Appeals by the Grenada Supreme Court - they were denied the basic principle of Due process of Law. And he posed the question, how can an un-constitutional Court, conduct a trial and uphold the Convictions of Murder and proceed to Sentence those persons to death? But strange enough, the Professor, nevertheless, also held that the PRG was the defacto Government - with the right to rule, legislate, and ensure and enforce peace, order, and social and National security. Dr. Alexis position was that, the Doctrine of Necessity is subject to more than one definition or interpretation, and the situation in Grenada in 1979, cannot be restricted to the one narrow definition as given by Professor McIntosh. He was further of the view, that he cannot understand how, the validity or otherwise of the said Doctrine of Necessity - could have been conclusively pronounced upon by the Professor, without any reference to the Privy Council on the matter. My little bit on the matter, was precisely the in-put of the Privy Council. Because Twenty-one (21) years ago, in the case of Andy Mitchell and the others of the Seventeen (17), Vs. Attorney General of Grenada - the Privy Council ruled in 1986, that the abolition of Appeals from Grenada to the Privy Council by the PRG, (PL No. 84) was valid and binding, and therefore the Law Lords had no jurisdiction to entertain that Case. And by the opportune co-incidence only on the 7th February, 2007 - our Independence Anniversary - in the Case now in the News, of the Re-sentencing of the Grenada Thirteen (13), the Privy Council has again ruled, that the said Andy Mitchell case of 1985/86 was properly decided. And the Appellants arguments to have that issue re-opened and re-heard were rejected. And that brings me to the third heading above - the way ahead. It seems that a lot of persons are not sure, and very confused about the Privy Council decision to send the Thirteen back to the High Court in Grenada for re-Sentencing. And some are also wondering whether the whole trial will be taking place again. The return for Sentencing is simply that and no more. Our OECS Eastern Caribbean Supreme Court of Appeal had held in 2002, that it was cruel and inhuman punishment - to Sentence anyone to be hanged for Murder without giving him/her an opportunity to address the Judge, not the Jury, and produce character and or other evidence to show why the ultimate sentence of death should not be imposed. The Court of Appeal, then headed by Sir Denis Byron as Chief Justice, also ruled that the mandatory death Sentence was un-Constitutional, and henceforth must be discretionary. And the Court of Appeal further held, that persons already in Prison on death row awaiting execution - were also entitled to be heard in Mitigation of their death Sentence. And recently the current Court of Appeal, and interestingly the CCJ in Trinidad, further held that anyone already in Prison for over Five years cannot be re-Sentenced to death. It can only be a Life Sentence or a number of years. In the case of the “Thirteen on the Hill” - the Privy Council also Ordered that the number of years they have spent in Prison and the progress they have made, should be taken into account in the re-Sentencing. Another interesting possibility, about this longstanding political drama that began in March, 1979, and has been on our calendar since then - is that the Restoration Act of 1991, which restored Appeals to the Privy Council, and had made it clear in Section 7 (4) thereof,… “that no Appeal whatsoever shall at all lie to Her Majesty in Council, whether final, interlocutory, or otherwise, or from any thing or matter arising out of any such decision of the former Court of Appeal “ - that prohibition could well be wiped away, depending on the re-Sentencing imposed by a High Court Judge. As Lord Diplock said in the Chokolingo case from Trinidad and Tobago in 1981 and the same repeated in the Thirteen case - “As it is a living, so must the Constitution be an effective, instrument.” And what we are here concerned with and about, is the breach of our Constitution of February 7th 1974. Because at whatever point the breach has been ruled upon, its effect is retrospective.