The Caribbean Court Of Justice: Will It Be A Hanging Court - June 28, 2003
THE CARIBBEAN COURT OF JUSTICE:
WILL IT BE A HANGING COURT?
DR. THE HONOURABLE KENNY D. ANTHONY
PRIME MINISTER OF SAINT LUCIA
THE NORMAN MANLEY LAW SCHOOL
JUNE 28TH, 2003
I have always believed that Jamaica has led the way for the rest of the Caribbean in matters of social and political transformation. Even a cursory review of Jamaica’s history confirms this. Whether it has been Paul Bogle’s Slave Rebellion in Morant Bay, or Garvey’s championship of black political consciousness, or Bob Marley’s music of wrenching pain and social renaissance, or Michael Manley’s doctrine of economic self-sufficiency, Jamaica’s history is replete with examples, in which its revolutionary spirit, has inspired events that have resonated for all of us in the region.
JAMAICA, A CONVEX LENS
Undoubtedly, Jamaica has been the convex lens through which countries in the Caribbean could pinpoint, with near crystal clarity, the next stage of their own development. In this way, it may be rightfully said that the rest of the Caribbean has matured vicariously, through Jamaica. What special quality or drive, inherent to the Jamaican spirit, has transformed Jamaica into the touchstone of our Caribbean consciousness? If there is one defining or unifying thread, which ties the seemingly disparate events of Jamaica’s history together, it is the unyielding belief in the right of a people to self-determination. The history of Jamaica is essentially the history of a people striving to shape its own destiny and to claim its rightful place in the world - not as a pale, carbon copy version of larger, metropolitan societies, but as a genuine, unique, and legitimate civilization, equal to that of any other.
In this way, Jamaica has inspired the rest of the countries of the Caribbean, to choose independence over dependence, and self-determination, over subservience. It is therefore no matter of coincidence that Jamaica has been at the forefront of efforts to establish the Caribbean Court of Justice.
JAMAICA AND THE CCJ
I have come to believe that the establishment of the Court has always been about the need for all the peoples of Caricom, to assert their confidence in their integrity, their civilization, and in themselves. No self-respecting nation should allow its sovereignty to be at large.
As your own Prime Minister, Hon. P.J. Patterson has often reminded us: “… You cannot be a sovereign nation with the interpretation of your laws being done externally.” Of this argument, Mendes, a distinguished Trinidadian lawyer and jurist concludes that, “that is the only argument that is logical and it is the only argument that is needed in support of the proposition of our own final Court of Appeal”.
The views of Prime Minister Patterson have been echoed elsewhere.
De la Bastide, as he then was, says that:
[It] is inconsistent with the status of an independent country to acquiesce in a situation where apparently on a permanent basis, or even on a temporary basis, you abdicate from the responsibility of making the final decision in judicial matters yourself and ask somebody else to come and do that for you… As a matter of principle, I think it is objectionable.
And Mr. Justice Telford Georges, one of only four Caribbean jurists to have sat on Her Majesty’s Judicial Committee, puts it starkly:
[It] appears to me that an independent country should assume the responsibility for providing a court of its own choosing for the final determination of legal disputes arising from decisions in the country. It is a compromise of sovereignty to leave that decision to a court which is part of the former colonial hierarchy, a court in the appointment of whose members we have absolutely no say.
I have myself, only recently reiterated the need for us to “complete our independence”, with the establishment of the Court. Accordingly, although those who support the Court have not always expressed that support in those strict terms, it is clear that the need to complete our constitutional journey has been at the core of the efforts to establish the Court, from the beginning.
Of course, there are those who have attempted to dismiss the argument for asserting our constitutional sovereignty as merely emotive. Alternatively, some have argued that the “compromise of sovereignty argument” is essentially misplaced, in light of the fact that the former colonies of the United Kingdom “opted” to retain appeals to the Privy Council, on achieving independence. In other words, that it was in effect an exercise of sovereignty to allow appeals to continue.
While I will return in the course of this address to those concerns, I want with respect, to suggest this evening that it is precisely in keeping with that drive toward self-determination and the desire to complete the repatriation of its Constitution, that Jamaica has played such a critical role over the years in bringing the idea of a final Court of Appeal for the region, to fruition. Although the actual political decision to establish the Court was taken by the Heads of Government of Caricom at Conference in Grenada in 1989, it was in fact the Jamaican delegation in Kingston, in 1970, which first put forward the resolution on the establishment of a final Court of Appeal, to replace the Privy Council.
It was again in Jamaica in 1997, that the Governments of Jamaica and Barbados proposed that what was then styled the “Caribbean Supreme Court”, be re-named the Caribbean Court of Justice, in recognition of the fact that the Court would be invested with both an original and appellate jurisdiction.
In effect then, Jamaica has been intimately involved with shaping the Court as an institution from the very beginning and at the most fundamental levels. For better or for worse, both its people and its jurisprudence have become intimately tied up with the debate over the Court, in a way that other nations of Caricom, which support establishment, cannot match.
At the heart of the Jamaican character is an innate, endearing pugnacity. So that it is in the nature of the Jamaican spirit to challenge and to question, everything from old accepted traditions to not quite so new ideas, like the CCJ. Yet even while that spirit draws Jamaica to change and to break with the past, it is indeed perfectly in keeping with that innate pugnacity, that Jamaicans would be pricked to assure themselves that the establishment of the Court is not motivated by sheer political expediency. And so the intensity of the debate in Jamaica is also unsurprising.
A NEED FOR SENSITIVITY
Having said that, I am keenly aware of the vehemence with which some members of Jamaican society oppose the establishment of the Court. Bearing in mind my earlier remarks in which I suggested that events in Jamaica have often predicted the course of events elsewhere in the Caribbean, I am sensitive to the deep differences which your Government’s decision to support the Court has wrought, in some instances. I accept too, that the debate about the CCJ is not confined to Jamaica’s shores.
Of the concerns which have arisen, there are perhaps three which have been universally shared throughout Caricom. The first, and perhaps most urgent, is that the Court has been established to expedite hanging. The second has been related to the capacity of judges on the CCJ bench to resist what some regard will be inevitable attempts at political interference, in the judicial process. Finally, anxieties over the ability of Caricom States to ensure that the Court is adequately funded, have compelled some to the view, that the Court should not be pursued at this time.
From the outset, I wish to make clear that, to some extent, the reservations which have been expressed about the capacity of the CCJ to discharge its mandate as the region’s final Court of Appeal, are completely understandable. The anxiety which the decision to establish the Court has engendered, is directly related to a more fundamental cynicism about the commitment of Caricom governments to address the failings of the justice system over the years. It was here in Jamaica, at an address to the Norman Manley Graduating Class of 2002, that I acknowledged that; “everywhere throughout our region the perception of our judicial system is unflattering”. As I suggested on that occasion, we cannot escape the fact that “our failure to deal with our judicial problems has undermined confidence in the establishment of the Court”.
Rather than focusing in this address on the substantial arguments in favour of establishment, I will confine myself to addressing those concerns, which have been expressed about the Court under the three broad headings I identified earlier. For clearly, one should be careful, not to mistake an admission that a criticism is not wholly without merit, for a concession that the criticism is correct. So for example, as I have pointed out elsewhere, it is disingenuous to argue for the retention of the Privy Council on the ground that the judicial system in the region is in chaos, and establishing the CCJ will only lead to further deterioration. Surely, the problems exist in spite of the Privy Council. The impact of the Privy Council on judicial reform has been inconsequential. We must look elsewhere for explanations for our failure to engineer reform to a system notorious for its resistance to change.
In any event, I take the view that it is incumbent upon those of us who support the Court, to at least attempt to convince others that the Court is able to stand on its own merits. I do not believe this can be done unless we are prepared to genuinely address the criticisms against establishment, separate and apart from those arguments in support of it.
THE CCJ AND THE HANGMAN PROPOSITION
By far the most troubling criticism of the Court, has been the suggestion that the CCJ is a cynical attempt on the part of some Caribbean politicians to facilitate hanging of death row inmates across the region.
Proponents of this view have persistently argued that efforts at establishment would not have crystallized, but for a collective unhappiness among Caribbean leaders with the Privy Council decision in the case of PRATT & MORGAN v. THE ATTORNEY GENERAL OF JAMAICA (1993) 3 ALL ER 769. It will of course be recalled that in PRATT (supra), the Privy Council effectively overruled two previous decisions in the cases of de FREITAS v. BENNY (1976) AC 239 and RILEY v. ATTORNEY GENERAL OF JAMAICA, (1982) 3 W.L.R. 557, where it had held on both occasions, that inordinate delays in executions of death sentences could not convert the sentence into a “cruel and unusual punishment”, so as to render it unconstitutional. But in PRATT (supra), the Board held a delay in excess of five years or more would constitute “cruel or inhuman treatment” contrary to the constitution of Jamaica, and by extension of the traditional rules of precedence, to the constitutions of other countries in the Commonwealth Caribbean.
While I will return to the actual jurisprudence later, it is important to note that the decision in PRATT (supra), for better or for worse, will always mark a jurisprudential turning point in the CCJ debate. For those who have consistently championed the Court, it represents a significant challenge, in so far as it introduced a new element of emotionalism to the debate which perhaps was not apparent before, and which itself makes the contention somewhat troublesome to refute. Conversely, for those who opposed the idea of abandoning the Privy Council, it presented a neat opportunity to disguise a tendency toward sheer stubborn historicism, as a reason for legitimate concern over the motives of establishment. If nothing else, what I willingly concede is that the debate about the pros and cons of establishment of the Court intensified in part, because the decision succeeded in raising the profile of the debate.
Interestingly, many have fallen prey to the convenience of the attack. In an article in the Guardian Newspaper on 1st December 2002, entitled, “Concerns the CCJ will be a hanging Court”, one writer opined that:
“The Pratt and Morgan case and others like it were received angrily by politicians and the public.”
According to S. Simmons, Coordinator for the Pressure Group for Caribbean Justice:
“The CCJ has been on the agenda for a long time, but things seem to have moved on apace since the Privy Council began handing out rulings which annoyed the Governments of Jamaica, Barbados, and Trinidad”.
Yet, the list of those who have sought to tangle the issues, also includes those who are usually more wary. No less than former Chief Justice of the OECS Supreme Court, Sir Vincent Floissac, another distinguished Caribbean jurist to sit on the Judicial Committee, has stated:
“Principally as a result of the decision in Pratt & Morgan, Caricom countries revived the issue of abolition of appeals to the Privy Council and the establishment of a CCJ… There is apprehension that persons sentenced to death will frustrate their sentences by extra-judicial appeals, which cannot be finalized within the five years prescribed by the decision in Pratt & Morgan”
Sir David Simmons, distinguished Chief Justice of the Barbadian Court of Appeal, has repudiated this view in rather sharp language:
“Anyone who would refer to the CCJ as a hanging court can consider himself guilty of what I call intellectual dishonesty.”
The temptation to simply agree with the learned Chief Justice of Barbados and move on is overwhelming. And yet, the fact that there remains intense opposition to the CCJ on this ground, is testament to the difficulty which supporters of the Court, have thus far experienced in trying to dispel this notion that the establishment of the Court and the issue of capital sentences are in any way connected. The issues are separate and moreover, while the argument is convenient, it has distracted from discussion of what I consider are more salient concerns, namely insulating the Court from political interference and guaranteeing its financial integrity and independence. As such, in view of the place which the issue has had in the debate about the CCJ, I hope I will be forgiven if I confine the majority of my analysis of the three broad concerns I earlier identified, to hopefully add to your perspectives.
THE HISTORY OF THE COURT
Beyond the mere assertion that the Court is not a creature of political expediency, the proposition that the CCJ is a hanging Court, ignores the history of the efforts to establish the Court. It should be remembered that the idea of replacing the Privy Council as the final court of the appeal for the region is not a new one. It was in your own Jamaican Gleaner in 1901 that the editor of the paper perhaps first proclaimed that “thinking men believe that the Judicial Committee has served its turn and is now out of joint with the condition of the times”.
The question of the abolition of appeals to the Judicial Committee was again raised at a meeting of colonial governors in Barbados in 1947, but it is generally thought that modern efforts to establish the Court have their roots in the Jamaican Resolution of Kingston in 1970, of which I have already spoken. Perhaps the next most significant development in this regard occurred in 1972 when the Organization of the Commonwealth Caribbean Bar Associations, (OCCBAR) established a committee to examine the issue of establishing a Caribbean Court of Appeal to replace the Privy Council. Sir David Simmons C.J., has reminded us that it was the late Aubrey Fraser, a former Justice of Appeal of the Court of Appeal of Trinidad and Tobago and the distinguished first principal of this institution, who produced a report on behalf of OCCBAR, advocating the substitution of the Judicial Committee with an indigenous regional Court.
Admittedly, it was not until the decision of the Caricom Heads of Government in 1989 that the notion began to take more tangible form. Perhaps the most significant development arising out of the Grande Anse Declaration of 1989 was the establishment of what is commonly regarded as the “Ramphal Commission”, which was mandated to undertake region wide consultations in order to make recommendations for the deepening of the regional integration process.
In 1992, a full year prior to the decision in PRATT (supra) the Commission submitted its report entitled “Time for Action”, and advocated that:
The case for a Caricom Supreme Court, with both a general appellate jurisdiction and an original one, is now overwhelming- indeed, it is fundamental to the process of integration. (Emphasis mine.)
In this regard, two points need to be noted here. The Ramphal Commission’s findings were in large part a reflection of the feelings and convictions of a cross-section of average Caricom citizens. Accordingly, it is difficult to understand how some could seek to argue that the Court is a creature imposed by politicians upon the masses. Secondly, almost from its genesis, the CCJ has been regarded as a lynchpin in the wider integration process.
Indeed, academics and jurists across the regional diaspora have unrepentantly championed the case for abolition of appeals to the Privy Council. And among one of the most compelling discussions of the issue has been the contribution of Mr. Michael de la Bastide, as he then was, who, prior to becoming Chief Justice of Trinidad & Tobago, argued persuasively for the establishment of our own regional Court of Appeal, in the Fourth Annual Anthony J. Bland Memorial Lecture, held in Barbados in 1995.
I have taken pains to mention the articles and commentaries in the footnotes to this address for one simple reason. It is significant that with the exception of the lecture by former Chief Justice de la Bastide in 1995, to which I will return later, all of the articles quoted precede the decision in PRATT(supra). Consequently, the sheer volume of analysis of the issue pre-1993, belies the suggestion that the idea for the establishment of the Court somehow achieved its impetus from the decision of the Privy Council in PRATT (supra).
Yet, even notwithstanding the extensive history of the Court, the “hangman Court” proposition collapses upon closer analysis.
THE ROLE OF PRECEDENT
The argument ignores the critical role of binding precedent within the legal systems of the Commonwealth Caribbean. I speak here of the fact that our entire judicial system is based on the principle that previous decisions on similar issues by higher Courts, will bind the Courts below to arrive at the same conclusions. The principles of precedent will invariably infuse a newly established CCJ.
While I have complained of the slavish adherence to previous judicial decisions by Caribbean judges, in my other life as an academic, it is the case that a newly established CCJ would inevitably be steered toward the relevant principles applicable to capital sentences, established in the jurisprudence of our Courts and the Privy Council. This is because even a newly established CCJ will have to have regard to past decisions of the Privy Council, in order to ensure that there is a degree of comity, consistency, and predictability in the legal systems of the region.
Frankly, the suggestion that the CCJ would be somehow more amenable to capital sentences evidences a fundamental misunderstanding of our judicial process. For it is fallacious to assume that common law judges, who have worshipped at the altar of British Legal Theology for their entire professional careers, would abandon their years of training and ingrained judicial instincts, merely because they had been appointed to a CCJ.
The proposition that our judiciary may be willing to ignore established precedent on the issue, is also disingenuous for other reasons. It ignores the fact that by and large, our judges have demonstrated their independence over and over again. In the St. Lucian case of MORREL COX v. THE ATTORNEY GENERAL, Case No. 714/99, H. C., for example, D’Auvergne J, applied PRATT (supra) and held that a stay of execution had to be granted since 4 years and 9 months had elapsed since the accused had been convicted. This was in spite of the fact that there was widespread public outcry for the convicted person, to be given a capital sentence.
Now I want to be clear here to ensure that I am not misunderstood. One of the most persuasive arguments in support of establishment of the Court, is, in my view, the opportunity it presents for reshaping our Caribbean Jurisprudence. As the distinguished Chief Justice of the OECS Court of Appeal, Sir Denys Byron has noted, “The CCJ will empower regional jurists to give effect to regional standards and values as the laws of the region are interpreted and applied.”
Yet, it would be a mistake to suppose that this process of reshaping an indigenous jurisprudence will happen overnight. In point of fact, the process by which Caribbean jurisprudence will become infused with the ethos and mores of our Caribbean society, will be gradual and incremental.
Thus, the suggestion that precedent will compel consistency on the issue of capital sentences, is not repugnant to the idea that the CCJ presents a much sought after opportunity to reshape our law. Simply put, the CCJ will be guided by past decisions in their determination of cases, which raise essentially similar issues to those already pronounced upon by the Privy Council. Yet, as I said recently in an address in Grenada, when “judges of the CCJ are increasingly forced to face and to resolve novel questions of law, the lack of a safety net in the form of a Judicial Committee, will undoubtedly provide the impetus to reshape our Caribbean Jurisprudence in new and interesting ways”.
JUDICIAL SUBSERVIENCE OR INNOVATION?
Caribbean judges are not as supine as some believe. Admittedly, some judges tend to look across the vast ocean towards the Privy Council for applause and approbation. Yet there are instances in which their capacity for innovation, leads to profound development in our law.
Consider the recent decision by the Eastern Caribbean Court of Appeal in the case of SPENCE & HUGHES v. THE QUEEN (1997) OECS, CRIM. APP.S No.s 20 of 1998 and 14 of 1997. In that case, the issue at stake was whether the mandatory sentence of death in cases of murder was contrary to the Constitutions of both St. Lucia and St. Vincent. By a majority decision of two to one, the OECS Court of Appeal held that the automatic application of the death penalty for convictions of murder, was an infringement of the constitutional right not to be subjected to cruel and inhuman, or degrading punishment.
On appeal to the Privy Council, the Board disagreed with the Court of Appeal only on the specific issue of whether the judge or the jury should determine the final sentence at a trial. As a consequence, the decision whether a person convicted of murder, will face a capital sentence or life imprisonment for example, will now depend in every case on an exercise of judicial discretion, after that person has been convicted at trial. In making that decision, a judge will be empowered to consider any relevant factors, which could invite the Court to impose a lesser sentence than death.
Although the substance of the decision was upheld on appeal to the Privy Council, it is critical to note that it was in fact our own regional jurists, who first held that the mandatory death sentence, common throughout many Commonwealth Caribbean Jurisdictions, was unconstitutional. In light of the fact that the decision demonstrates a willingness on the part of the regional judiciary, to interpret our Constitutions so that the rights of citizens there-under, are given full expression, it becomes that more difficult for the “hangman Court” proponent to argue that regional jurists will be somehow more disposed to capital sentences.
The decision in SPENCE & HUGHES (supra), is as much a philosophical departure away from the death penalty by judges of the region, as it also represents a new and profound development in our regional jurisprudence.
A MATTER FOR LEGISLATURES
A simple fact is often forgotten. Courts in our legal system, do not hang people. It is our Parliaments, which choose to retain the death penalty as a punishment for the crime of murder, and not our Courts. Accordingly, our Courts do no more than apply the law which Parliament has enacted or ordained. Thus, if any Court in our jurisdictions, sentences someone to hang, that Court is fulfilling a basic and fundamental duty to interpret the laws, which the legislatures in the region have decided, as a matter of policy, should be retained. It is undoubtedly the case that within the Commonwealth Caribbean, including probably Jamaica, support for the death penalty remains, for better or for worse, generally strong. This is perhaps among the clearest examples of the principle that a country’s laws should be reflective of its social mores and ethos.
I make this point only to emphasize that the persistence of the death penalty in the region has thus far been guaranteed not by the judicial process, but at the insistence of Caricom Constitutions and legislatures. It is therefore somewhat unfair to attack the integrity of the Court, for having to discharge a duty which it has no power to actively abandon, though, I readily concede that the Privy Council decisions have emboldened regional judges who privately oppose hanging.
But there is a curious historical dimension that is often overlooked. The distinguished Chief Justice of the OECS Court of Appeal, Sir Denys Byron, puts it this way:
It is strange that Caribbean Jurists seem to consider capital punishment as an indigenous thing which we own. In reality, it was imposed by British Colonial Policy through the Privy Council. The Universal Declaration of Human Rights and its impact on concepts of humanity led to changes in political, social and legal philosophy. It is interesting that at the time when Caribbean states acquired independence, a savings clause was put into the constitutions, to remove the power from Caribbean judges to declare that any punishment imposed during colonialism and was in effect at the time of independence, was unconstitutional.
If it is the case that the death penalty is essentially a relic of our colonial past, and if its defacto retention has been facilitated by our respective legislatures, and not by our Courts, then it seems to me that, with respect, the energy of the Court’s detractors, should not be focused on whether the CCJ should be established, but whether we should continue to retain the death penalty per se.
I want to stress that I do not make this point facetiously. I make the point only to suggest that it is disingenuous to undermine the integrity of the Court on this basis, without facing up to the more fundamental issue of whether the time has come for us in the Caribbean Commonwealth, to begin the discussion about our retention of the death penalty, in earnest. Indeed, I want to suggest that attacking the establishment of the Court in this way has resulted in clouding, rather than illuminating, these fundamental issues. I therefore wish to invite those who have opposed the court for this reason, to consider whether they have not succeeded in making the Court a scapegoat, in order to mask frustrations over human rights issues at large. For it would be singularly unfortunate if, merely because the status quo is unacceptable to some, that frustration were to be continually projected onto the Court, and allowed to perennially stain its establishment.
STRENGTHENING THE FINANCIAL INDEPENDENCE OF THE COURT
Another recurring theme of the opponents of the Court is anxiety about the financial independence of the Court. Put crudely, the argument is this: there can be no judicial independence if there is no guarantee of the financial independence of the Court.
I fully understand these concerns, especially given the failure of some regional governments to meet their financial obligations to Caricom institutions. However, this issue ought to be put to rest since regional Governments have gone to extraordinary lengths to insulate the CCJ from financial embarrassment or indeed from being held to ransom by any one single Government.
I can happily report that the Heads of Government of Caricom have taken the decision to authorize the Caribbean Development Bank, to raise the sum of US one hundred million dollars on the international financial market, in order to effect a one time settlement with the objective of establishing a trust fund for the Court. The proceeds of this trust fund will be used to finance the recurrent expenditure of the Court into perpetuity. Perhaps the most welcome aspect of this arrangement will be that individual islands who are parties to the Agreement to establish the Court, will enter into separate agreements with the CDB, for the repayment of a pre-assessed share of contribution to the Fund. The advantage of this situation lies in the fact that in the event that an individual Member State defaults on its obligations to the CDB, it will in no way affect the integrity of the trust fund, which will be independently managed.
In my view, the arrangements which have been made for funding are more than adequate to ensure that the CCJ does not become the victim of subventions from the participating Governments. In any event, I take the view that it is unacceptable that we should continue to expect British Tax Payers to pay for justice for us, in the form of the Privy Council. As I have mused elsewhere, it would be interesting to see if the debate about the Court would have taken the course it has, if Britain did indeed decide that it was no longer willing to foot the bill to make the Privy Council available to the region, as Margaret Thatcher once implied.
COMPETENCE OF REGIONAL JUDICIARY
As if the above arguments of the detractors of the Court were not enough, questions have been raised about the quality and competence of our judges. There can be no doubt however, that our jurists have already demonstrated the requisite capacity to meet the intellectual demands of the appellate process. One important but often overlooked fact, is that in many cases where appeals from the region reach the Privy Council, the Judicial Committee will have invariably adopted the reasoning and analysis of judges in our own Courts, whether it is the judgment of a single judge in the High Court, or a dissenting judgment in the Court of Appeal.
In de FREITAS v. P. S. OF MINISTRY OF AGRICULTURE, FISHERIES, LANDS AND HOUSING (1999) 1 A.C. 69, the Privy Council overruled the Court of Appeal and essentially adopted the first instance judgment of Redhead J, as he then was, in holding that legislation which purported to make it unlawful for a civil servant to take part in a peaceful demonstration against Government corruption, was unconstitutional. In BENJAMIN v. MINISTER OF INFORMATION ET AL, P.C. Appeal No. 2 of 1999, the Privy Council expressly approved of the first instance judgment of Saunders J., as then he was, in holding that the decision by the Government of Anguilla to shut down a radio talk show on a Government owned station, breached the constitutional right of its host and listeners to freedom of expression. In THORNHILL v. ATTORNEY GENERAL OF TRINIDAD & TOBAGO (1976) 31 WIR, the Privy Council paid “respectful tribute” to the “lucidity and cogency” of the judgment of Georges J., as he then was, in agreeing with him that a refusal by the police to allow the appellant to see an attorney for three days breached the appellant’s constitutional rights. Indeed, while the Privy Council speaks of the “lucidity and cogency” of Georges J., I would prefer to speak of his ingenuity and compulsive logic. And again, in the Privy Council appeal of REYES v. THE QUEEN (2002) 2 WLR, 1034, a case from Belize involving a determination of essentially the same issues as were at stake in SPENCE & HUGHES (supra), Lord Bingham expressly approved of and relied upon the judgment of Saunders J. at Court of Appeal. That our jurists in the region are more than up to the task of manning our final Court of Appeal, ought never to be a matter of doubt, if one has consulted the jurisprudence they have directly influenced.
And although the statistics are somewhat dated now, it is interesting to note that, between 1985 to 1994, the Privy Council upheld 102 decisions of the Courts of Appeal of Caribbean countries, out of a total of 163 determined after hearing.
Unquestionably, judges of the CCJ will assume a critical adjudicatory role in the new dispensation. Traditionally, there has been a tendency to regard judicial independence in the narrow terms of whether judges will remain inviolate, insofar as political interference is concerned. Yet, the notion of judicial independence also speaks to wider issues, of the ability of our judiciary, as Professor Simeon McIntosh has put it, to “re-make a language of adjudication that would lend rhetorical coherence to our public life.”
The necessity of ensuring that our judiciary enjoys that freedom, underlines the fundamental principles of self-determination which compel and impel the Court’s creation. Perhaps the most eloquent exposition of the idea has come in the aforementioned lecture by former Chief Justice de la Bastide, who spoke for me when he said:
What I think we should look at is the nature of the issues which a Final Court of Appeal, whose jurisdiction is virtually unlimited, is called upon from time to time to decide…When we do that, we see that a number of these decisions, which have extremely important consequences for the whole community, are really policy decisions, involving the weighing of competing interests and considerations. The competition is typically between the interests of the individual, whether it is to the humaneness or fairness or some such consideration, and the interests of the rest of society to be protected and to have the law of the land enforced.
Neither the common law, which consists really of the principles derived from decided cases, nor statue law, can provide a clear and certain answer to every question, and the decisions which the Final Court of Appeal is called upon to make in order to fill the interstices is sometimes not very different from those made by a democratically elected Parliament… In making such decisions, one is not unearthing some universal verity, but determining what is best for a particular society in the circumstances existing at a certain point in its history. I would have thought that it was essential for the decision makers in such cases to have an intimate knowledge acquired at first hand of the society for whom the decision is made.
That de la Bastide, in his remarks, has hit upon a quintessential truth of our judicial process, has been acknowledged by no less than the Privy Council itself, albeit indirectly. The seminal dissenting judgment of Lord Hoffman in the case of LEWIS v. ATTORNEY GENERAL OF JAMAICA (2000) 3 W.L.R. 1785, confirms why, in the final analysis, many decisions critical to the administration of justice in the region, will be determined by the Law Lords, according to a coincidental tendency of policy. According to Lord Hoffman:
…Changes in membership of the Court prompts another reason why it is particularly important for this Board to be very careful in departing from precedent…the Board hearing an appeal consists of five members drawn from the 12 Law Lords, occasional visiting judges from the Commonwealth countries (though regrettably seldom from the Caribbean) and a number of retired Lords Justices of Appeal. It is possible for a Board to be constituted without anyone who was a party to a recent precedent or to be composed largely of members who were previously in dissenting minorities.
…The power of final interpretation of a constitution must be handled with care. If the Board feels able to depart from a previous decision simply because its members on a given occasion have a “doctrinal disposition to come out differently”, the rule of law will be damaged and there will be no stability in the administration of justice in the Caribbean.
Coming from one of it’s own, Lord Hoffman’s dissent represents a more damaging indictment of the Privy Council, than any Caribbean jurist could offer.
In this regard, many have misunderstood the claim by supporters of the Court that its establishment is part of the process of affirming our judicial sovereignty. Some, as I have previously noted, have sought to suggest that the argument is misplaced, in light of the fact that some Caricom countries voluntarily opted to retain appeals to the Privy Council upon attaining independence. In so doing, they have failed to grasp the point. As de la Bastide has so eloquently captured, the “sovereignty” we speak of is imbedded in the notion, that a people’s own judiciary must have the freedom to determine a society’s most fundamental matters of conscience, steeped in its values and mores. In short, if the major legal issues every society faces, must finally turn on matters of judicial policy, then I say it is a constitutional madness for us to continue to have those matters decided for us by foreign judges, who repeatedly acknowledge their unfamiliarity with local conditions.
Here, the inability of the Privy Council to resolve some of our most fundamental disputes should not be underestimated. The decision in CABLE & WIRELESS v. MARPIN TELECOMS CO. LTD (2000), P.C. APPEAL No. 15 of 2000, in which the Privy Council expressly acknowledged that the question of whether C & W’s exclusive license to operate telephonic and other telecommunications services in Dominica, called for an “appreciation of local conditions”, represents a stark admission by the Board, that it is ill equipped to resolve some of our most fundamental legal issues. The failure to arrive at some conclusive decision on the issue was all the more unfortunate in light of the fact that the case was so critical to the social and economic interests of all the Caricom islands, which had similar monopolies at the time.
Indeed, allow me here, to be personal in just one instance. In 1994, I appeared before the Privy Council as the junior to Maurice King Q.C, the then Attorney General of Barbados, to defend the judgment of a majority on the Court of Appeal in the case of GLADWYN OPHELIA KING v. ATTORNEY GENERAL OF BARBADOS, (1992) 44 WLR 52;  1 WLR 1560. Simply put, the question was whether, in enacting an Order authorized by a 1948 Act to reduce the salaries of public officers in Barbados by 8%, the Government had unlawfully deprived public officers of their property, contrary to the Constitution of Barbados.
There was no doubt that this case had serious constitutional, economic and political implications for Barbados and for every Caribbean Commonwealth state. At the wider level, the outcome of the case would provide some indication of how far a Government could go, in legislating a reduction in the salaries of its public officers, if it found itself in economic difficulty. Indeed, the Government of Dominica has only recently announced a 5% reduction in the salaries of its public officers. The issue is real and alive.
It was clear that the judges of the Barbados Supreme Court understood the constitutional import of the case. After confirming that the Order reducing salaries was lawfully made under a pre-independence Act, which had been saved by the Constitution, the Privy Council made short shrift of the appellants’ case with the curt dismissal that:
[T]heir Lordships can discern no possible justification for any implication that the emoluments attached to the office of the appellant in the public service shall never be reduced.
The appellant had no right to a minimum salary. If she had no right to a minimum salary she had no property protected by sections 11 and 16 of the Constitution.
I was astounded by the failure of the Privy Council to grasp the enormity of the implications of the case. To this day, notwithstanding my own belief that the decision was correct, I remain uncomfortable with the Board’s logic and its reasoning. This surely was a case where unstated notions of “parliamentary sovereignty” collided with the provisions of a written Constitution.
STRENGTHENING ACCESS TO JUSTICE
There is an additional dimension that is sometimes lost in the debate. I want to reproduce a statement that I have made ad nauseum. “As all of you will know, protection of the law is worthless if you cannot get access to the Courts. As Lord Diplock declared, all ‘access to a court of justice [is] itself, the protection of the law to which individuals are entitled’. De La Bastide once asserted that appeals ‘to the Privy Council involves necessarily such enormous expense that that right can be used as a tool of oppression’. The use of the word ‘oppression’ is perhaps putting the argument too stringently. The fact is, appeals to the Privy Council are costly. Save for appeals in forma pauperis, only litigants who are able t afford the costs eventually appear before the Privy Council. Justice before the Privy Council is neither easily accessible nor popular. It is elitist, available only to Governments and litigants with means and property. The Caribbean Court of Justice affords greater opportunity of access to justice, and in the result, protection of the law. The Caribbean Court of Justice will widen and deepen access of litigants seeking final determination of their matters. I expect a significant increase in final appeals from across the region.”
THE TIME IS NOW
Ladies and Gentlemen, I believe that this is the right time, the right moment in our shared history to establish the Caribbean Court of Justice. Considerable experience has been gained in the regional integration process. We know our strengths and weaknesses, and we have so designed the court to avoid the weaknesses which have crippled other regional initiatives. No regional issue has attracted as much passionate debate as this. Fortuitously, support has come from an unexpected quarter.
The recent announcement by Prime Minister Tony Blair of the United Kingdom that the ancient post of Lord Chancellor will be abolished and replaced by a Supreme Court whose judges will be appointed on the advice of a Judicial Services Commission should force all of us, including those who are nostalgic, to reflect on our links to the Privy Council. To judge by the words of Lord Falconer, the peer who will oversee the changes, the British have finally understood that “the person who appoints judges should not be a member of the Executive, a member of the Legislature, and involved as well as the head of the Judiciary.” (The Times, June 2003). Ironically, the judicial model which the British exported to their former colonies, will be imported to Westminster, in one form or other.
We have assumed that because our Constitutions entrench a right of appeal to the Privy Council, albeit at different levels, the British will be compelled to retain and finance the Privy Council in perpetuity. There can be no greater constitutional anachronism than that which exists – supposedly independent Constitutions entrenching a Court, whose future depends on the financial and legislative goodwill of its former colonial power.
As I posed in my recent address to the graduating class of the Norman Manley Law School,
“Consider for a moment the unthinkable. What if the British Parliament decided to enact legislation and abolish appeals to the Privy Council? Are we … to take comfort from the dictum that such action is possible in theory but unthinkable in practice”.
The point has been reached whether this is no longer a theoretical proposition. In my view, the British are simply too polite to say bluntly to the Caribbean countries wedded to the Privy Council, that the time has come to relieve British taxpayers of their responsibility for the Privy Council.
In any event, I must not be understood as suggesting that the new proposals announced by Prime Minister Blair effectively paves the way for the abolition of the Privy Council. The details of the new Supreme Court are yet to be worked out, and there can be no question that appropriate arrangements could be made for the retention of the Privy Council. The real question, is whether we are minded to place the British under duress by compelling them to retain an institution, which many of us suspect, they would prefer to abolish. Should Caribbean countries force the British to retain an institution of no practical value to the British Constitution?
A tantalizing question remains: Could the British Government abolish unilaterally, the Privy Council? Such a decision would undoubtedly unleash a constitutional crisis. Would the doctrine of necessity apply in this instance? Of course, this would invite speculation of the esoteric legal conundrum, whether, at independence, the British Parliament successfully amputated its power to legislate for its former colonies. But this is not the occasion to probe this legal minefield. Let us leave it alone.
A MATTER OF CONFIDENCE
Finally, I end with the question of the possibility of political interference in the CCJ. I have left this issue for last since it is unnecessary, in my view, to deal with it at any great length.
By way of information, a few points should be noted generally. First, apart from the Caribbean, only Mauritius, New Zealand, Brunei and Zambia continue to maintain appeals to the Judicial Committee. As many of you already know, India, Canada and Australia, have all abandoned appeals to the Board, at some time or another, Australia having done so most recently, in 1986. It is perhaps interesting to also note that in both Australia and Canada, judges at the federal level are, in one way or another, appointed on the recommendation of the Executive branch of Government. Perhaps even more to the point, within the European Union, judges are appointed to the European Court of Justice, by the “Governments of the Member States” for a term of six years, though they are eligible for re-appointment. Apparently, no one in those states believes that mere appointment by politicians will automatically or inevitably compromise the judicial process.
However, as it relates to the CCJ, the Agreement establishing the Court has ensured that the Governments of Caricom will play no part in the selection of persons to sit as judges, that task having been assigned by the Agreement to a Regional and Judicial Services Commission. In fact, the only judicial decision which Heads of Government will be able to influence is the selection of the President of the Court, “who shall be appointed or removed by the qualified majority vote of three quarters of the Contracting Parties on the recommendation of the Commission”. These last few words – “on the recommendation of the Commission” – should be emphasized.
In deference to Civil Society and indeed to opinion in Jamaica, Caricom Governments have gone to great lengths to introduce checks and balances to the constitution of the Court. For all practical purposes, politicians have no control over the composition of the Regional Judicial and Legal Services Commission. Membership has been virtually abdicated to the legal profession and other entities in civil society. In any event, we must never forget that in the very final analysis, the only guarantee of judicial independence, is the personal integrity of the judges who sit on the bench.
Accordingly, the only question we need to ask ourselves in this regard, is this: do I believe, that there are persons among us, with the personal integrity, necessary to guarantee the Court’s independence?
May I respectfully suggest, that our ability as a people to wholeheartedly support the establishment of the Court, will finally depend on whether we feel able to answer that simple question, with a “yes” or a “no”.
Ladies and Gentlemen, I thank you for your patience, respect and understanding.
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