Trinidad and Tobago will in due course accept the Caribbean Court of Justice (CCJ) as this country’s final court of appeal, to replace the London-based Privy Council.
This view was expressed by the CCJ’s President Sir Dennis Byron, who formed this expectation based on statements being made by local officials. The question now is the timing for this to become a reality.
Sir Dennis, 77, a Leeward Islands scholar born in St Kitts and an attorney for almost 50 years, during which time he has held prestigious positions as a regional and international jurist, scoffs at the opinion of those who say the CCJ is inferior to comparable legal institutions abroad.
Q: Sir Dennis, the Caribbean Court of Justice is observing its tenth anniversary this month. Exactly what is there to be celebrating about?
A: (In his Henry Street, Port-of-Spain, headquarters of the CCJ Wednesday morning) I think we have a lot to celebrate including the fact we are in existence for ten years and it’s a great opportunity to serve the citizens of our region.
The court operates in two distinct jurisdictions: one is the original jurisdiction which deals with disputes arising out of the interpretation and application of the Single Market and Economy Revised Treaty of Chaguaramas. Secondly, final appeals from countries within the region. And during our existence we have done extensive work in both areas, 16 cases have been filed in the original jurisdiction.
One of them, which we all can remember, which received a lot of public attention is the matter where the young lady from Jamaica brought proceedings against the government of Barbados and that case demonstrated the relevance of the CCJ.
Therefore you do have something to crow about?
(A slight smile) Well, I don’t like to use that concept but the point is we have in fact done a lot of work, it has been well done and it has been received by the persons who have benefited from the adjudication of the court.
In your 2011-2013 report you said words to the effect that one of the goals of the CCJ is to develop a strong regional jurisprudence system, yet there is this bugbear involving Trinidad and Tobago. Has that put a damper on your celebration?
(Decisively) No. I don’t think that Trinidad and Tobago is a bugbear (A heavy sigh). People have always been trying to get me to speak about what they call political will and I have tried to avoid that because …
Yes and I suspect that it would not be prudent to do so...?
(Interjecting) Well, No. No. It is not that I cannot do it but I am just saying I don’t agree with the perceptions that have prompted those questions. As I see it…if you look at government as an institution, the Government of Trinidad and Tobago has done a lot to support and develop the work of the CCJ.
That is true Your Honour, but isn’t it a fact that Trinidad and Tobago is yet to make the CCJ our final court of appeal, with Prime Minister Kamla Persad-Bissessar saying a few years ago this country was now willing to let the CCJ deal only with criminal matters from T&T?
Therefore isn’t it correct to say that Trinidad and Tobago is not yet fully on board?
Well, you see again I do not like that language because in my opinion Trinidad and Tobago is fully on board with the court; it has signed the treaty establishing the court, it has paid up in full its financial contributions to the court’s operations.
The court was set up on the basis that it would be completely independent of political interference and one critical area of independence is financial independence, so the CCJ does not have to depend on the monthly or annual subventions from any member government. Consequently, a unique form of financing was developed through a (US)$100 million trust fund which is funded through the interests derived from that money. Trinidad and Tobago’s contribution to that was just over 29 per cent, approximately (US)$29 million and they paid that in full.
It is only one thing they have not done and that is abolish appeals to the Privy Council and establish the CCJ as its final appeal court.
In your view Sir Dennis, wouldn’t it be a more acceptable proposition for Trinidad and Tobago to make the CCJ its absolutely final court of appeal?
Of course. I think it is overdue. It would be better for Trinidad and Tobago, it would be better for the court. It would be better for the region as a whole if the vision of the founding fathers were fulfilled in this matter, so we are ready and willing to serve the community in this manner.
Your Honour, if my memory serves me right, I think the present T&T administration, when it was in the opposition, it came out against the CCJ complaining about its ethnic composition…?
Well the CCJ has a component of seven judges, the President and six others and the qualifications for being selected as a judge are very clearly spelt out. In making appointments the Regional Judicial and Legal Service Commission can only appoint
people who apply to become judges and then those persons go through a competitive process.
The criteria that is utilised is high moral character, intellect, analytical ability, sound judgement, integrity and understanding of people and the society.
Obviously, legal knowledge is a critical part of that and these are the factors that are utilised to ensure that the best candidates are selected.
Now, you have raised the issue of diversity here because that is what is really being said: that a court should somehow or other reflect persons that it represents and we all agree that that is desirable. Our court, however, cannot function on the basis of a quota system where you say you must have this number of persons simply because of the numbers.
But one has to trust that the issue of diversity is a factor which would be taken into account in the selection process.
Are you suggesting that a person of a certain ethnic background has not yet applied to be a judge of the CCJ?
(A somewhat perplexed expression) Well, I don’t know exactly what you expect me to say in response to that. If you look at the seven members of the court—you have an Englishman, a Dutchman, you have a Trinbagonian who is a woman of East Indian descent who is the most recently appointed judge, you have a judge from Jamaica, you have two from the Eastern Caribbean and one male judge from T&T. So I think you have quite a mixture which demonstrates that type of diversity of the court (which) is far superior to the diversity of courts from other countries.
Based on your interaction with the Trinidad and Tobago Government, perhaps even at the level of the Prime Minister, do you have any sort of indication about how soon this country would come on board fully?
Well, you use that word indication, I cannot speak to that, but what I can say is that expectation and I do think it is likely that T&T is ready to go forward. I have heard the Prime Minister saying that it is inevitable in this regard, the question really is when is the right time to do it.
And I further believe that her readiness to come on board would most likely be influenced by statements from significant constituencies in the country. The most important in this context is the Law Association and I felt really gratified when the new president of the association said last year T&T was now firmly committed to ensure that the CCJ became the final appellate of Trinidad and Tobago.
Your Honour where do you see the CCJ in the next ten years?
In the next ten years the CCJ will be firmly entrenched as the final appeal court for all countries of Caricom and in fact it is quite interesting, we have already received indications that courts which are not within the Commonwealth are making enquiries asking us what is the process of making the CCJ their final court of appeal.
Finally Sir Dennis, how do you view the dispensing of justice by the CCJ in comparison to that of let’s say the Privy Council?
There are many answers to that question and the one that is most relevant at the moment has to do with the opportunity for access to justice. Take, for example, the court of appeal in Trinidad and Tobago gives many judgements each year and very few appeals are made to the Privy Council.
That could mean two things: litigants are satisfied and they do not want to appeal. It could also mean that if they want to appeal it is too expensive and complicated to do so...which is it?
If it is the latter, having the CCJ gives the citizens an opportunity to get access to justice in Trinidad and Tobago in that regard and that’s the experience we have had in the countries where the Privy Council is the final court of appeal.
Published:Sunday, April 12, 2015