CCJ Versus Privy Council as Final Court of Appeal

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Opinion Pieces

Wednesday, 09 May 2012 02:30

By Nathaniel Paddy James

The Privy Council has been the final appellate Court for most former Colonies of the English speaking Caribbean, who were part of the British Empire. Upon their attaining independence these former Colonies created their  own justice system and retained the Privy Council as their final Court of Appeal.

The jurisprudence of the English speaking Caribbean is inextricably linked to the British system of Justice and as such, the practice of Law has its genesis in the way the Courts function in Britain. The Privy Council even though considered to be a British Court does not function as such since it has little or no role to play in the dispensation of justice in Britain. Its primary function is to hear appeals from Colonies and former Colonies of Britain.

 
When the Privy Council sits in London to hear cases from Countries in the Region, it sits as a Court for those Countries. For instance, when it sits to hear a Case on appeal from Antigua and Barbuda it becomes a Court for Antigua and Barbuda and not a Court for Britain.

Any member of our Local Bar can appear before the Privy Council in the same way he or she appears in the High Court or the Court of Appeal to argue matters occupying the attention of the High Court or the Court of Appeal.
 
It is therefore wrong for anyone to push the argument that the Privy Council being a British Court has no relevance in the dispensation of justice   in  the Territories of the Caribbean that retained it as their final Court of appeal. The Judicial Committee of the Privy Council comprises Law Lords from Britain and Judges from Commonwealth Countries who have served with distinction in the various jurisdictions of the Commonwealth.

This is a clear indication that the Privy Council does not function as a British Court but rather a Court designed to serve mainly Countries of the Commonwealth that retained it as their final Court of appeal.
 
There can be no doubt that the Judicial Committee of the Privy Council as an independent judicial Entity has gained the confidence of the peoples of English speaking Caribbean. This is so because the peoples of the Region would have seen over time the attempt by those who hold political office to do things that could influence decisions of the various regional Courts.

This kind of fear is   what continues to drive negative views of the CCJ since, Caribbean peoples believe that because politicians are responsible to finance the Court in whatever form from their respective National budgets that in itself is sufficient to say that the CCJ cannot be independent in dispensing justice as the Region’s final appellate Court.
 
I am one of those Antiguans and Barbudans who wish to disagree with that notion. The CCJ as an Appellate Court of final jurisdiction for all the English speaking Caribbean Territories should be embraced by all well thinking Caribbean people.
 
The University of the West Indies has trained some of our best legal minds, many of whom are now Judges, Magistrates and Legal Advocates  at the Bar. This in itself is testimony of the scholarship of those who administer justice in the region and who possess the knowledge to improve the jurisprudence   of  the Caribbean so that it can become more relevant to the needs of its people.
 
It is counterproductive in my view for those who are responsible to push programs that will sell the CCJ as an alternative to the Privy Council to attack the Privy Council as an irrelevant Institution in the dispensation of Justice in the Caribbean. The CCJ as a Regional Court in the early stages of its development must draw on the experience of Institutions such as the Judicial Committee of the Privy Council and other Commonwealth Courts in deciding cases that will be   filed   for  its consideration.


 
A point to be made as we go forward in our consideration of the CCJ is the convenience of some Countries to use the CCJ as a means of furthering their political objective by means of legislation separating the aims and objective of the Court to be the final appellate Court in all its jurisdictions for the Region.

This can be seen by an attempt by Trinidad and Tobago to enact legislation that will allow the CCJ to consider cases from the Courts of Trinidad and Tobago on appeal on matters decided in Criminal jurisdiction only. This to me is nonsensical and does not meet the standard set for the proper function of the CCJ.
 
One accepts readily based on statements made recently by the Hon. Prime Minister of Trinidad and Tobago that she and her Government want to use the   CCJ to accomplish what they are unable to accomplish at the Privy Council in respect of capital punishment.

For instance, the death penalty was made difficult to be carried out by the Privy Council in some circumstances in all the Territories the Privy Council serves in the region. There is no doubt in anyone’s mind that the Government of Trinidad and Tobago sees the opportunity to resume hanging if it signs on to the CCJ in its criminal jurisdiction rather than going the whole way of both criminal and civil jurisdictions. This to me is a political manipulation of the Court to serve the political wishes of those in power in Trinidad and Tobago.

These are the kinds of political maneuverings that will continue to allow the peoples  of the Region to question the independence of the CCJ.
 
The CCJ is a Regional Court setup by Regional Governments to be the final Court of Appellate jurisdiction to hear civil and criminal matters. This is a Treaty obligation of each state that signs on to the Court.

Somebody from the CCJ needs to tell Caribbean people where the Parliament of Trinidad and Tobago gets the power to enact  legislation  that  will  allow the CCJ to hear cases which were not a separate and distinct mandate of the Court in its operation going forward.

The effect of what Trinidad and Tobago is doing is that a matter before a Criminal Court where a constitutional issue is raised up to the Court of Appeal of Trinidad and Tobago the Privy Council will hear the Constitutional  issue and decide on it and the CCJ will wait on the determination of that issue from the Privy Council before it hears the substantive issue in question which is the Criminal issue. This to me is pure nonsense and a clear attempt to use the Court to enable it to carry out its political objectives.
 
The Governments of the Region should resist the approach by the Trinidad and Tobago Government to manipulate the CCJ to satisfy its political objectives. The CCJ as important as it may appear at this juncture of Caribbean development must be seen as an Institution free from political manipulation by the respective Government of the Region that signs on to it before the people accept and embrace it.

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A new approach in selling the idea that the CCJ has the kind of independence that satisfies the people of the Region is needed. That approach should ensure that the various Governments once signed on make the Court their final Court in  all its appellate jurisdictions.

To do otherwise would show clearly that the CCJ is not competent enough to carry out all the functions of the Judicial Committee  of the Privy Council in London which is now the highest Appellate Court for most of the Governments and peoples of the Region.

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