For those who advocate that the time has come for us to relinquish ties with all relics of our colonial past, the answer as to whether the Privy Council (PC) should be replaced with the Caribbean Court of Justice (CCJ) is an overwhelming "yes." Others who hesitate to sever a long-standing relationship that has proven itself fruitful would quickly indicate that the matter is not one that should be viewed primarily on the basis of sovereignty but the wisdom in placing confidence in a court that has yet to prove itself worthy of support. Our country is not the only nation that is making baby steps, if moving at all, towards lovingly embracing the CCJ and the fact that to date only three of 10 territories who signed the agreement in February 2001 which established the CCJ have accepted this court as their final Court of Appeal is indicative that there are matters that must be addressed before the CCJ is accepted with open arms by all who conceived its birth.
Message from the top
From as far back as 1999, Lord Browne Wilkinson, who was then the President of the PC, observed that the PC was burdened in terms of time and resources by appeals from convicted murderers on death row in the Caribbean. He took the opportunity to encourage the Caribbean to establish a court of final appellate jurisdiction staffed by its own citizens and not foreigners. In the PC judgment of Francis Eiley and others, from the Belize Court of Appeal, delivered by Lord Phillips in November 2009, it is stated in paragraph 2: "The prosecution have not thought it fit to appear on this appeal. The board understands that the reason for this may be simply the cost that representation on appeal would have involved. This is regrettable. Prosecuting authorities of countries that have preserved the right of appeal to Her Majesty in council should recognise the importance that the board attaches to receiving appropriate assistance where appeals are brought against criminal convictions, especially where these are against convictions as serious as murder." Interestingly, within six months of this judgment, which strongly criticised the apparent flippant attitude of the relevant authority in Belize in not having counsel appear on its behalf before the PC, Belize recognised the CCJ as its final appeal court.
Notable remarks
The recent statements of the outgoing first President of the CCJ, Michael de la Bastide, about the current status of the CCJ (that it would be a national and regional catastrophe if we were "to destroy it or endanger it or not to use it") should act as a catalyst for the debate and resolution of this matter of urgent, public importance. Perhaps the fact that we are plagued with other pressing challenges in critical sectors such as national security and health and the realisation that the Privy Council on its own motion cannot simply "get rid of us" account for the lack of priority given to the matter of its removal as our final appellate court. But the truth is that our troubles in other areas are not going to disappear overnight or any time soon and there is no excuse for prolonging a meaningful discussion on an issue that, at the very least, binds us in principle.
For and against
Stated succinctly, the arguments in favour of retaining the PC are the potential for political interference of the judges; the risk that funding to upkeep the CCJ may become an issue if territories renege on their financial commitments; that the money used towards the CCJ would be better spent on the upgrade of the administration of criminal justice; and that, especially in civil litigation, foreign investors are more comfortable with the British-funded PC. On the other side, for those who support the replacement of the PC with the CCJ,the main arguments are that of sovereignty; the need to develop regional jurisprudence by a court that is mindful of our specific history, society and culture; that there are sufficient legal luminaries in the region capable and competent to adjudicate on all matters brought before them; and that the majority of cases that go to the PC are criminal and not civil, so that the apparent preference of the PC by foreign investors should not be a ground for retaining the English court. The reliance on primary and secondary sources of law, confirmed data and relevant statistics, the very tools used by skilled advocates to support their positions when making submissions, ought to assist in this debate that must be placed in the public domain. There is no room for emotion or resort to political rhetoric because this matter is one which affects our destiny and there will be no forgiveness by generations to come if there is an unforced error by those entrusted to make the final decision.
Way forward
In order to remove the PC, legislation requiring a special majority of three-quarter in the Lower House and three-fifths in the Upper House will have to be brought to and passed in the Parliament. As with the constitutional amendment legislation to provide for the categorisation of murder (which recently failed in the Lower House), the Government will need the support of the Opposition if the relevant bill to amend the section dealing with the PC is to be passed with the requisite majority. The Opposition has made it clear that it is in favour of replacing the PC with the CCJ and the Government indicated late last year that the people of Trinidad and Tobago must decide via a referendum (which, unlike in Jamaica, is not a constitutional requirement) whether the CCJ would replace the PC. It is good that this regime is prepared to listen to the voice of the people but there must be expediency in hearing and determining the matter, including the process and timeframe for the referendum. In the interim, it is expected that the Law Association, Criminal Bar Association, Hugh Wooding Law School and the Faculty of Law (UWI), as well as other respected entities, public and private, will engage their members in lively debates on the issue and also make recommendations for the way forward. Already there have been proposals that the PC should be left as the final Court of Appeal for civil matters and the CCJ as the final appellate court for criminal matters. Eventually, after the CCJ has won the confidence of all stakeholders, its remit could be widened and the PC entirely replaced. Whatever the final outcome, the discussion must commence immediately for we are duty bound to take responsibility as architects of our future.