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Friday, July 20, 2012

At a time in our nation’s history when we are gearing up for the celebration of our 50 years since attaining independence, there are many who are using the opportunity to reflect on the roles of those institutions that are rightly regarded as the guardians of our democracy. Last week, Justice Adrian Saunders, a judge of the Caribbean Court of Justice (CCJ), delivered a lecture on the topic, “The Role of the Court of Appeal in Developing and Preserving an Independent and Just Society.” I wish to highlight some of the matters raised by Justice Saunders which, if allowed to inform our thinking, will augur to the benefit of our nation and the region as a whole. This Government has indicated its intention to bring to the Parliament legislation that will make the CCJ the final court of appeal for criminal matters while retaining the Privy Council (PC) as the final appellate court for civil litigation. This intention has been met with mixed reviews and a genuine concern that there should be a complete abolition of appeals to the PC.


Those who advocate the retention of the PC suggest that we as a people are not yet ready to independently chart our jurisprudential course, a statement which, even if clothed in the most diplomatic garments, is an indictment on the character and competence of our judiciary. The irony is that the PC itself has recognised the brilliance of our judges, as evidenced in the case of Bertoli et al v Malone [1991] UKPC 17, in which the Court of Appeal judgment delivered by a Caribbean jurist, the late Justice Telford Georges, was referred to by the PC in the following terms: “The arguments and the authorities have been so fully and so meticulously rehearsed in the careful and instructive judgment of the Court of Appeal … that it would be a work of supererogation for their Lordships to repeat what was there said in different and probably less felicitous language. They are content to accept and adopt the reasoning…in toto.” Little wonder that Justice Saunders opined in his address: “The problem that we face in the Carib-bean is the herculean one of clos-ing the gap between this demon- stration of excellence and our people’s recognition and affirmation of it.” It is unfortunate but true that despite the acknowledgement given by foreign observers, jurists and academics that our region possesses legal luminaries who stand on equal footing with their international counterparts, our lack of self-worth has prevented us from making the giant step of accepting the CCJ as our final court of appeal.


In this age of advanced technology and social media, it is important that appropriate use is made of all available avenues of communication so that the record of our ability to produce judges of great distinction is appreciated by all people from all walks of life, especially our younger generation, upon whom we rely to take our Carib-bean jurisprudence to the next level. The fact that the Caribbean public displays a lack of confidence and trust in its judges was addressed by Justice Saunders, who accepted that: “Care must be taken to ensure that judicial officers conform to the highest standards of conduct and that ethical infractions among judicial officers are immediately and adequately addressed. “Beyond these measures, courts must engage with the public in meaningful ways. A comprehensive communication and public-education outreach would help to inform the public better about the methods of work of the courts.” In this time of high criminal activity, with urgent and desperate calls for all hands to come on deck to assist in the fight against crime, the judiciary must be allowed to play its role, without compromise of its independence, in criminal justice reform.


Recognising the important role to be played by the judiciary, Justice Saunders stated: “It is essential that, along with the other branches of government, the judiciary should play a leadership role in guiding a holistic approach to criminal justice reform; an approach that integrates programmes that simultaneously improve and co-ordinate the functioning of the various actors and institutions within the criminal justice system.” It is with this thinking in mind that I continue to propose the establishment of the Criminal Justice Agency, an independent body comprising representatives from all institutions involved in crime pre- vention and criminal prosecution, including a representative from the judiciary, so that all the relevant stakeholders are made part of a dynamic think tank which properly formulates measures for fixing the deficiencies in the system. That Justice Saunders presented a meaningful discourse worthy of our favourable consideration proves that there exist amongst us individuals who can competently set the course for holistic Caribbean development.


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