OUR CARIBBEAN: Unfortunate confusion over rights court
Oliver Jackman, distinguished Barbadian diplomat and jurist who served the Inter-American Court for Human Rights (IACHR) for almost a third of its 32 years, would have been pleased that this nation was chosen to host the court last week.
The occasion was the court’s history-making 44th Extraordinary Period Of Sessions, the first held in an English-speaking member country of the hemispheric institution.
Had he survived the illness that took him away from us in 1997, Jackman, honoured for his years of service at the formal opening ceremony of the court’s three-day event, would have been disappointed that questions and comments were about the court’s “jurisdiction”.
The false perception that the Court for Human Rights considered itself as standing above the Constitution of Barbados, or that of any other participating member state, would only have added to that disappointment.
Such negative vibes about the court cannot, of course, be divorced from a prevailing obsession in the English-speaking Caribbean to retain the death penalty for murder.
Trinidad and Tobago, for example, suspended its ratification of the American Convention On Human Rights in May 1998 over the court’s rulings against death penalty cases.
The reality is that the IACHR is the court for all participating states in this hemisphere. It has jurisdiction over all cases referred to it.
However, before any case can be taken to the court, all prevailing remedies at the national level must first be exhausted. In short, with three exceptions, no case can directly be referred to the court without all appeals being exhausted in the courts of a participating member state. And even at that stage, the case must first be forwarded to the Inter-American Commission for consideration by the relevant judges.
The three exceptions are when due process guarantees are violated; when access to remedies under domestic law is denied; or when there is undue delay in the justice system.
The IACHR functions similarly to the Privy Council in London (for Caribbean countries that maintain such a colonial dependence) and the Caribbean Court of Justice (CCJ), the court of last resort for CARICOM member countries that accept its jurisdiction.
Cases are referred to the Privy Council and the CCJ only when all appeals in the local jurisdiction have been exhausted.
The pity is that six years after its inauguration, there continues to be much misrepresentation about the functions and sovereignty of the CCJ, which is yet to be accessed by most CARICOM states as their final appellate court.
Little wonder, therefore, that there is even more confusion and misunderstanding about the functions and jurisdiction of the hemispheric-wide Court for Human Rights.