October 30, 2009

Commonwealth countries 'should stop using privy council'
Thursday, October 29, 2009
Source: Epolitix via Yahoo! UK Ireland News

"To ask Her Majestys government what plans they have to modify the system of appeals from certain Commonwealth countries to the Judicial Committee of the Privy Council".

The first question in the House of Lords on Monday, 26 October, turned into an interesting mini-debate on the case for continuing appeals from certain Commonwealth countries to the Judicial Committee of the Privy Council.

Lord Bach, on behalf of the government, offered a classic straight bat to proposals for change following the creation of the Supreme Court on 1 October.

In short, he answered my question by stating that all matters relating to the Court's procedures and division of business are for Lord Phillips, who is double-hatted as Chairman of the Board of the Judicial Committee and President of the Supreme Court.

Among those who spoke were: Lord Thomas of Gresford, a practitioner on the Judicial Committee, who stressed the contribution of the Court to Human Rights and the independence of the judiciary and Lord Pannick, who wondered whether the participation of British judges in proceedings that involved the death penalty validated a degrading sentence.

Lord Lloyd of Berwick answered that when he sat on such appeals he was trying to apply the law of the country in question.

Lord Morris of Handsworth, of West Indian origin, asked about possible government assistance to the Caribbean Court of Justice.

Unspoken were concerns that to "repatriate" appeals might reduce the quality of justice by leading to political interference in decisions and a view that these appeals were an anachronistic hangover from Empire.

The Judicial Committee of the Privy Council, now part of the Supreme Court, was set up under the Judicial Committee Act of 1833. Its jurisdiction currently comprises appeals from about 15 independent Commonwealth states (mostly former UK colonies in the Caribbean), British Overseas Territories, Guernsey, Jersey and the Isle of Man.

Lord Phillips was quoted in the Financial Times of 21 September as saying that he was searching for ways to curb the, "disproportionate time" he and his fellow senior justices spent on these appeals and that he was concerned that up to 40 per cent of their working hours would be spent on Privy Council business.

He was prepared to draft in the Court of Appeal judges to help out but, "in an ideal world" former Commonwealth countries would stop using the Privy Council and establish their own courts of appeal.

The Director of the Constitution Unit at University College London was quoting as saying that it was, "a minor public scandal" that our senior judges spent almost half their time on business, "of no interest to anyone in the UK".

The Caribbean Court of Justice (CCJ) was established in 2001 by the Caribbean community (Caricom) States and was formally inaugurated in 2005.

It is designed to be a court of last resort for the 12 current members and thus to replace the Judicial Committee of the Privy Council.

Yes, over many years, the Law Lords have had a most positive influence on the Commonwealth on good governance, the rule of law, the independence of the judiciary and on the role of the profession generally.

It is also true that the CCJ has been slow to gain acceptance and legitimacy because of inter-Caribbean rivalries, professional inertia and lack of resources.

Ultimately, it should replace the Privy Council and surely the British government should be ready to help it along that route on the basis of mutual interest.

October 29, 2009

Guyana's foreign minister says no time to turn back on CSME
Published on Thursday, October 29, 2009
Source: Caribbean Net News

GEORGETOWN, Guyana -- Foreign Affairs Minister Carolyn Rodrigues-Birkett says Guyana is going full blast to implement of the Caribbean Community (CARICOM) Single Market and Economy (CSME) and called on sister member states to view this process as critical to the region's survival, especially in this time of harsh economic environment and social realities.

Rodrigues-Birkett's call came on Wednesday during a public symposium here, under the theme ”Understanding the CSME” at the Guyana International Convention Centre in Georgetown as part of the local efforts to sensitize citizens about the Regional Integration process.

The Foreign Minister who has Responsibility for CARICOM Affairs said since the CSME was signed into being with the Grand Anse Declaration in 1989 there have been tremendous progress in its implementation, however there are still “pressing issues that need to be dealt with urgently."

“I cannot pretend to be unaware of the disenchantment that exists amongst some of our people, many question the benefits of CARICOM as a whole and the seriousness of US policymakers but we cannot turn back now. I think that part of this disinterest is because some people do not see the goals outlined in the Grand Anse declaration in 1981 translated into their day to day experiences,” the Guyanese Foreign Minister stressed.

She noted that while the regional group may be blowing its own trumpet about the achievements of the CSME it must with the same breath address the many pitfalls that stymie the process.

“We cannot speak of being committed to CSME when it is easier for our goods to be exported to Europe than within our territories and we still have some of those issues to deal with,” Rodrigues-Birkett added.

Meanwhile, Programme Manager of the CSME Unit in Barbados, Ivor Carryl, said significant progress has been made over the years in implementing the CSME.

He noted that, despite the many challenges and differences among member states, there are many achievements of the CSME.

Among them he highlighted the free movement of goods, services, capital, skills the Regional Development Fund, the Caribbean Court of Justice and the CARICOM Competition Commission. .

“The entire objective is to deliver to the people of the Caribbean more investment, better jobs, and growth in their personal welfare matters, and that is what this entire CSME process is about,” Carryl noted.

Carryl added that the symposium must be used as an opportunity to examine success and more importantly identify Guyana’s role to get its fair share of the pie.

Guyana is one of the countries that first began the process of implementing the CSME and so far it is progressing in 12 of the 15 CARICOM member states.

Phillips calls for more constitutional reforms
Source: Jamaica Gleaner

Dr Peter Phillips said the time has come to reconsider barring people with dual allegiances from sitting in Parliament.

"The world has changed significantly," Phillips told members of the House of Representatives, as he made his contribution to the debate on the Charter of Rights inside Gordon House on Tuesday.

The Charter of Rights is intended to replace chapter three of the Jamaican Constitution. The proposed reform seeks to enshrine the sovereignty of the people, guaranteeing rights which are today a privilege.

On Tuesday, Phillips said that revisiting the provision relating to persons with divided loyalty being allowed to sit in Parliament and in some sensitive positions should form part of a broader constitutional reform.

The Constitution currently bars persons who have pledged allegiance or acknowledged adherence or obedience to a foreign power from being Parliamentarians.

Phillips' opposition People's National Party (PNP) had used the divided loyalty provision to force the disqualification of government members Daryl Vaz, Gregory Mair and Michael Stern from the House. The members were subsequently returned after by-elections in their constituencies.

Constitutional absurdity

Prime Minister Bruce Golding has said there exists a constitu-tional absurdity which allows Commonwealth citizen to be eligible to be elected to Parliament, yet disqualifies a Jamaican who has allegiance to a foreign power.

On Tuesday, Phillips said "the significance of the Commonwealth in our national life was much different in 1962 from what it is now".

"The number of Jamaicans living in non-commonwealth countries is very significant," Phillips said.

However, Phillips noted that "there are some critical positions in our parliament, and in our foreign service, where we ought to have clear and undivided loyalty to Jamaica".

Meanwhile, Phillips urged Parliament to "restart the engine that gave us this joint select committee report" and reconstitute another committee on constitutional reform.

Issues for examination

The PNP strongman wants that committee to examine, not only dual citizenship issues but, the Caribbean Court of justice, the appointment of a President, as head of state and a method of appointing two senate seats not appointed by the prime minister or the leader of the Opposition.

"A new constitution will not solve all our problems, but it can give a sense of new beginning," Phillips said while praising the efforts of the Parliament for demonstrating the will to debate the Charter of Rights.

The East Central St Andrew member said Parliament had no excuse for stalling constitutional reforms for 32 years.

"The length of time that it has taken is symptomatic of some of the ills that have plagued our political process, not least of which has been excessive partisanship and the search for political one-upmanship," Phillips said.

According to Phillips, "if we succeed at this we can blot out some of the failings of the past and perhaps give our people new hope and a new beginning with a more effective set of constitutional arrangements".

Overcoming challenges to Caribbean integration

Published: Thursday | October 29, 2009

Jamaica Gleaner

The Editor, Sir:

The debate on Caribbean integration continues, from how deeply integrated we should be, to whether we should be integrated at all; from issues concerning the Caribbean Court of Justice (CCJ) to matters dealing with intra-community trade. On these issues, there are as many opinions as there are people.

As expected, these debates reflect firmly held personal views which are, in many cases, informed by individual experiences. The problem is, we tend to speak on these issues more from emotion than we do from information.

When problems arise between our countries, which they inevitably will, just as they do among families, many of us immediately think that the notion of integration is a grand fantasy that should be abandoned for more practical pursuits. But the fact is, even the European Union, idolised by so many as a model of successful integration, has had its share of problems which might have crippled it, had it not been for those who understood the benefits of integration and were bold enough to pursue the vision of an integrated Europe.

The problem of xenophobia

Take for example the problem of xenophobia. One Jamaican student currently studying in Barbados recently raised this issue in a letter to the editor of this paper published on October 22. He writes that he was "all for Caribbean integration" before his arrival in Barbados but laments that since he has been there, he has "heard the most harsh, negative and backward statements about my dear land, Jamaica. The Eastern Caribbean is against us, from Antigua, St Vincent and Barbados to Trinidad. The reality is we cannot befriend our secret enemies. These islanders are so prejudiced against us, it is unbelievable".

He goes on to say, "It is not wise for us to have the CCJ as a final court of appeal when the others dislike us so much". He concludes that, "Integration will never work until the others who hate us remove their prejudices against us." One can easily sense his disappointment with his experience in Barbados and his growing disdain for Eastern Caribbean nationals.

I am certain that he is not the only one with such a view. Having lived in Barbados for two years myself, and having good and bad experiences while there, I can sympathise with his view and I believe his concern having to do with xenophobia is a legitimate one. But I am not confident that the solution is to isolate ourselves from our Caribbean neighbours. It is not likely that their prejudices against us, whether real or perceived, will be removed by distancing ourselves. Instead, prejudices will be removed, our own and our Caribbean neighbours', only when we get to know each other better. In other words, by greater interaction and further integration.

Enhanced appreciation

Another writer to the editor on October 24, also speaking on the integration movement, notes that, "Those who have travelled to Jamaica are usually in awe at the beauty of the place, the friendliness of the people and their resilience. They love the music and culture and try to copy as much as they can." Therefore, it is only by greater interaction among our Caribbean people, by experiencing our various islands and cultures and by enjoying our different foods and music that our prejudices and fears will be dispelled and our appreciation for each other will be enhanced.

It is for us as a people to find routes through or around these problems through better information and greater exposure rather than throwing our hands in the air and relinquishing all hope of reaping the benefits of integration.

The time for questioning the wisdom of pursuing integration has gone. The only question that remains is how best to do it.

I am, etc.,

Duwayne Lawrence

October 28, 2009

What say the House of Lords??

House of Lords

Monday, 26 October 2009.

2.30 pm

Prayers—read by the Lord Bishop of Ripon and Leeds.

Commonwealth: Privy Council


2.36 pm

Asked By Lord Anderson of Swansea

To ask Her Majesty’s Government what plans they have to modify the system of appeals from certain Commonwealth countries to the Judicial Committee of the Privy Council.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, the Government have no plans to modify the system of appeals from certain Commonwealth countries to the Judicial Committee of the Privy Council.

Lord Anderson of Swansea: My noble friend will be well aware of the concern that a disproportionate amount of time and resources in the new Supreme Court is spent on these Privy Council cases. There can of course be some ad hoc appointment of judges to the Supreme Court, but the Caribbean court of appeal was designed specifically to replace the Privy Council and its credibility is enhanced by the fact that a British judge and a Dutch judge serve on it. What in my noble friend’s view are the prospects of that Caribbean court replacing the Privy Council for those purposes and what help are the Government prepared to give to the Caribbean Court of Justice to this end?

Lord Bach: The amount of time spent on Judicial Committee cases and the question of deciding which judges are to sit on those cases are matters entirely for the noble and learned Lord, Lord Phillips, in his dual capacity as chairman of the board of the Judicial Committee and resident of the Supreme Court. We certainly have no reasons to discourage the Caribbean Court of Justice—indeed, we have reasons to encourage it. It was set up in 2005, and countries that previously sent their final cases to the JCPC have chosen to use that court in its place. That is absolutely a matter for them and, as I said, we do nothing to discourage it.

Lord Thomas of Gresford: I declare an interest as a practitioner on the Judicial Committee and, indeed, as having had the privilege in July last of appearing in the final case to be heard in Downing Street after 170 years. Does the Minister agree that the Judicial Committee of the Privy Council has for more than 100 years protected the people of colonial countries and former colonies and that in particular it has been instrumental in the interpretation of constitutions, the protection of human rights and, absolutely essentially, the independence of the judiciary in those countries?

Lord Bach: Yes, I agree with the noble Lord. That is exactly what the Judicial Committee has done over a very long period. Countries where Her Majesty is the head of state,UKcolonies and the Crown dependencies are entitled to retain this right of appeal to the Judicial Committee as the final court of appeal. The essential point is that it is absolutely a matter for them whether they choose to continue to do so.

Lord Pannick: My Lords, will the Minister confirm that many of the cases heard by the Judicial Committee have involved the imposition of sentences of death on defendants in criminal cases? Will the government consider whether it is really appropriate for British judges to continue to participate in proceedings that involve the sentence of death and thereby to validate a sentence that is rightly regarded by this country as both degrading and inhumane?

Lord Bach: My Lords, I am grateful for the question. The judges who sit on the Judicial Committee of the Privy Council do so as privy counsellors and their task is to rule on the law of the individual country involved. The noble Lord is right that they sometimes have to make difficult decisions with regard to the death penalty. As long as this system continues—and we have no intention of changing it—that is a role that the judges must take on themselves.

Baroness Gardner of Parkes: My Lords—

Lord Morris of Handsworth: Is the Minister aware that the Caribbean Court of Justice is grossly underfunded and that this impacts on the quality of the decisions? Are the Government prepared to look again to see what resources could be afforded until the court finds the proper level at which to dispense justice similar in quality to that of the Privy Council?

Lord Bach: I am grateful to my noble friend. I did not know that it was considered that the court was underfunded and I shall take that back to the department.

Baroness Gardner of Parkes: My Lords—

Lord Lloyd of Berwick: My Lords—

The Minister of State, Department of Energy and Climate Change (Lord Hunt of Kings Heath):We must let the noble Baroness in.

Baroness Gardner of Parkes: Can the Minister tell me the exact process by which a country decides? I recall clearly when all cases in Australia came from the Privy Council but now they are all done in Australia. Did that decision come from this end or the Australian end?

Lord Bach: My Lords, the answer to that question is easy. The decision would have come from the Australian end. It is absolutely a matter for the independent country itself to decide whether it wants to use this provision.

Lord Lloyd of Berwick: As the noble Lord will know, I have sat in many appeals from Caribbean and other countries that used to have an appeal to the Privy Council. I never understood that in sitting on those appeals I was in any sense validating the death sentence. I hope that the noble Lord will agree that I was trying—successfully, I hope—to apply the law of the countries in question.

Lord Bach: I thank the noble and learned Lord for the role that he has played over many years and all those who continue to do that valuable job.

Baroness Symons of Vernham Dean: Can my noble friend tell me whether, in doing exactly what the noble and learned Lord, Lord Lloyd, has said about looking at the law of the country, the committee has upheld the death sentence in those countries since it was abolished in this country?

Lord Bach: I do not know the figures, but I suspect that the answer is that the committee has upheld the death penalty in certain instances. I am sure that, on the other side, there have been occasions when it has allowed an appeal against such a sentence.

LordWallace of Saltaire: In overseeing and checking on the quality of justice in Crown dependencies and overseas territories, does the Ministry of Justice or do other aspects of Her Majesty’s Government play a more active role than simply waiting for court cases to come to the Judicial Committee?

Lord Bach: We have to be very careful here. Many of the countries involved with the JCPC are proud, independent countries with their own judicial system. Largely because of tradition and history, they happen to choose to have their senior appeal court in this country. The Ministry of Justice and the Government generally have to be very wary indeed about interfering in the legal systems of other countries.

Baroness Whitaker: My Lords, is it not the case that, when jurisdictions have gone not to the Privy Council but to the Caribbean court, the death sentence has much more often been upheld? Will my noble friend use every pressure that he can through diplomatic means to encourage other jurisdictions to do away with the death penalty?

Lord Bach: In my personal view—not that that matters—and in the view of the Government, the death penalty is not a proper sentence for any offence.

October 27, 2009

Better political maturity needed
Posted: Sunday, October 25, 2009
Source: www.trinidadandtobagonews.com
By Derren Joseph
October 25, 2009

For the third week in a row, I continue to explore the debate on constitutional reform. By the time this is published, Dr Ghany's committee would have held two public meetings on constitutional reform. Regarding the case for constitutional reform in the first place, one issue that has jumped out at me is the issue of the Privy Council still being our final court of appeal. As a Trini and as a West Indian, I feel embarrassed as I follow this discussion. On a Caribbean Court of Justice Blog, an article from the "Financial Times" is reproduced "http://caribbeancourtofjustice.blogspot.com". In it, Lord Phillips, President of the new Supreme Court, said he was searching for ways to curb the "disproportionate" time he and his fellow senior justices spent hearing legal appeals from independent Commonwealth countries to the Privy Council in London.

Essentially, the article makes it very clear that it was a "minor public scandal" that judges in the UK's top court spent almost half their time on business "of no interest to anyone in the UK". It goes on to say that "if they didn't spend time in the Privy Council, the justices of the Supreme Court could hear almost twice as many cases coming up from the UK legal system." The article concludes by saying that this is both an "ideological stain and a financial drain on the newly-created Supreme Court". In a nutshell, they do not want us former colonies clogging up their system with our problems. Some argue that we are not yet ready for the Caribbean Court of Justice; others argue that we should effect the constitutional change needed to recognise the CCJ, and that this delay betrays the underlying issue—the immaturity of our politicians. This position holds that we should not just focus on the terms of our constitution, but the maturity and the attitude of the politicians we choose to represent our interests.

In discussing constitutional reform on Facebook, a contributor referenced the US presidential elections of 2000. Al Gore could have maintained his court challenge, but he chose not to do so, "for the sake of our unity as a people and the strength of our democracy." Would that level of maturity have been displayed in a similar situation in Trinidad and Tobago? Or would the court challenge have continued to the detriment of us all? In looking at constitutional reform, there may be some benefit in keeping an eye out for potential occasions where clashes between parties could lead to the system grinding to a halt. One potential scenario would be if we had a US-type presidential system and different parties controlled the legislature and the executive. The Prime Minister drew reference to this "political immaturity" in justifying the proposal in the "Working Paper on Constitution Reform for Public Comment" for having the President being from the party that has a parliamentary majority.

This is something to seriously consider. But such consideration should be guided by the Reservations of Solomon Lutchman in the Report of the Wooding Commission on Constitutional Reform. He notes that "A new constitution, or any new set of clothes, cannot solve the ills of any society, unless there is a fundamental change of attitudes in the people for whom it is designed and the persons who must operate it." Lutchman goes on to say that "no constitution can be better than the society it serves or can work better than is willed by the operators. A constitution should encourage the collective effort of the society and be the vehicle whereby the collective social effort is encouraged and realised, not frustrated and perverted. Even where a constitution is defective, collective social effort and public awareness can modify its operation, and even where it is good, public apathy and perverse practices can frustrate the best political machinery."

Personally, one of my favourite parts is where Lutchman says that "The people are always, in the long run, wiser than their leaders, and the democratic system should provide continuous and succeeding opportunities for the good sense of the people to correct past mistakes and prevail." Perhaps, there is no magical constitution to resolve our issues. Some say, the real magic probably lies in supporting leaders who bring out the best in us and encourage us to be better citizens.

No support for Caribbean Court from newly elected Bar Association president

Dominica, CMC

The newly elected President of the Dominica Bar Association (DBA) Levi A. Peter says he is not convinced that the Caribbean is ready for its own final court of appeal.

The Trinidad-based Caribbean Court of Justice (CCJ) was established in 2001 to replace the London-based Privy Council as the region’s final court of appeal. It also functions as an international tribunal hearing disputes arising from the interpretation and application of the Revised Treaty under the CARICOM Single Market and Economy (CSME).

But while most CARICOM countries are signatories to the court’s original jurisdiction, only Barbados and Guyana are members of its appellate jurisdiction.

Peter, who was elected last week, said that while he understands the benefit of the CCJ he is not persuaded of its effectiveness.

“I can see the arguments both sides, the primary argument that I hear in favour of the CCJ is that with independence one has responsibility for all aspects of one’s governance.

“I also take the view though, that one has to be able and prepared. I am not yet persuaded that we are ready in the Caribbean, that’s my position,” Peter said, adding “maybe somebody or some group of people will be able to persuade me but until that time the jury’s out, as far as I’m concerned”.

Last month, prominent British jurist, Lord Phillips, indirectly endorsed the CCJ when he told the Financial Times newspaper that he and his senior justices spend a ““disproportionate” amount of time hearing legal appeals from independent countries from the Caribbean and other Commonwealth countries to the Privy Council in London.

“It is a huge amount of time. I personally would like to see it reduced,” said Lord Phillips, the President of the British Supreme Court.

He questioned whether some Privy Council cases - which have ranged from Jamaican death row appeals to fights over press freedom in Bermuda - needed to be heard by a panel of five of Britain’s most senior judges.

According to him, “in an ideal world” the former Commonwealth countries would stop using the Privy Council and instead set up their own final courts of appeal.

CCJ judge says it is insulting to continue using British Privy Council


As the debate rages over the wisdom of using the Caribbean Court of Justice (CCJ) as the final court of appeal in the region, one of the court’s justices says it is insulting to continue using the British Privy Council.

“There was a time when we had no choice but to utilise the Privy Council as our final court of appeal,” Justice Adrian Saunders told a St. Vincent and the Grenadines’ Independence Luncheon in Brooklyn on Sunday.

“But today, in my view, it is an insult to the dignity of our people that we should continue to entrust the tasks of adjudging our disputes and protecting our democracy to the judges of another civilization, especially when we have established our own final court,” he added.

The Vincentian-born jurist, the only justice from the sub-regional Organisation of Eastern Caribbean Court (OECS) currently sitting on the CCJ, was the keynote speaker at the event marking St. Vincent and the Grenadines’ 30th anniversary of political independence on Tuesday.

Justice Saunders said abolishing appeals to the Privy Council, “in effect, completes the circle of our independence,” adding that scepticism against the Trinidad and Tobago-based CCJ “boils down to a lack of faith, an absence of trust.

“It is this same scepticism, this absence of confidence that the faint-hearted experienced when we established our own University of the West Indies in Jamaica in 1948; when we began training our own doctors; when we established our own Council of Legal Education in 1970 to train our own lawyers; when we, in St Vincent and the Grenadines, proceeded to Associated Statehood in 1969; and when, ultimately, we obtained political independence 30 years ago,” he said.

“The historians will record that, at every single one of these stages, there have been those timorous souls who were unable to bring themselves to believe in their own capacity as a proud people to deliver a quality product and to be as good as the best anywhere else.”

Justice Saunders said the region’s people will never advance if they continue to regard themselves as being inferior.

“Yes, it is a challenge, but I believe we are perfectly capable of fashioning and maintaining appropriate institutions; and, in the judicial field in particular, the Caribbean has repeatedly demonstrated its ability to produce outstanding jurists acclaimed throughout the world, even as their exploits are rarely mentioned in the region,” he said.

The judge said two United Nations’ Specialised Criminal Courts are headed by Caribbean nationals, identifying them as Jamaican Judge, Patrick Robinson, President of the International Criminal Tribunal for the former Yugoslavia, and Sir Dennis Byron, a Kittitian, who is President of the International Criminal Tribunal for Rwanda.

Recently, president of the new Supreme Court in Britain, Lord Phillips, called on Caribbean countries to establish their own final court of appeal.

Lord Phillips told London’s Financial Times newspaper that he plans to curb the “disproportionate” time he and his fellow senior justices have been spending in hearing legal appeals from independent countries from the Caribbean and other Commonwealth countries to the Privy Council.

Lord Phillips added that, “in an ideal world,” former Commonwealth countries would stop using the Privy Council and set up their own final courts of appeal instead.

The CCJ, established by regional governments in 2001, has both an original and appellate jurisdiction.

But, while most of the Caribbean Community (CARICOM) countries are members of the original jurisdiction that functions as an international tribunal, hearing disputes arising from the interpretation and application of the Revised Treaty under the CARICOM Single Market and Economy (CSME), only Barbados and Guyana have signed on to the appellate jurisdiction.

Justice Saunders said the short answer to stop using the Privy Council is “because they would like us to stop burdening them with our appeals”.

But he added there is a “more fundamental reason” why the region needs its own court, stating that law is a “social tool” and that the function of a final court is to use this tool “to make the society a better place, in order to protect and enhance our democracy.”

“Judges who sit and reside in the Caribbean are better equipped to perform this role,” Justice Saunders emphasised.

“They are near to and aware and sensitive of the values, traditions, customs and norms of our people,” he added.

“The truth of the matter is that no judge can be fully effective if the judge is out of touch, if the judge has no personal insights into the broad values of the society and does not understand, appreciate and personally experience the consequences of the judgments the judge delivers.”

Justice Saunders applauded the Guyana and Barbados governments for replacing the Privy Council with the CCJ as their final court almost five years ago.

“And people of those states have expressed satisfaction with the performance of the court. I know that it won’t be long before the other states in the region come on board,” he added

October 22, 2009


Source: Jamaica Observer

Thursday, October 22, 2009

OPPOSITION Leader Portia Simpson Miller has signalled thePNP's willingness to support the enactment of a new Charter of Fundamental Rights and Freedoms but is urging the Government to put the legislative foundation in place for Jamaica to become a part of the Caribbean Court of Justice at the same time.

Simpson Miller said while the Opposition was heartened that the Government has given a firm signal that they are seriously considering having the Caribbean Court of Justice as the final Court of Appeal, both should be done concurrently.

"That is what we are asking for; that the move to put the legislative foundation in place for the Charter of Rights and the Caribbean Court of Justice should be undertaken at one and the same time. I am relying on the word of the prime minister in this matter," Simpson Miller said.

On the matter of having the CCJ as Jamaica's final appeal court, Simpson Miller said the Opposition had been reluctant to give approval for the provisions of the new Charter to be interpreted by the Privy Council in London, England.

She said there were several other and even more powerful reasons for Jamaica to have the CCJ as its final appeal court, which the Opposition will outline further when that legislative process begins.

Last week Prime Minister Bruce Golding, in opening the debate on the Charter, said though the enactment of the new Charter had been "long in process... and slow in progress", all efforts would be made to pass the provision before Parliament prorogues in March next year.

The new charter, which has been the subject of much debate since the 1990s, is expected to replace Chapter III of the present constitution and has the support of both parties.

A new Charter of Fundamental Rights and Freedoms was one of three major recommendations made by a 1995 Joint Select Committee. The report which was adopted by Parliament also recommended that Jamaica take on a republican form of government by removing Britain as its monarch and have its own indigenous president as head of state. It also suggested that Jamaica delink from the judicial committee of the Privy Council and accept the Caribbean court as its final appellate body.

Several former British colonies in the Caribbean are also working through their own constitutional issues to remove the UK-based Privy Council as their court of last resort for criminal and civil matters, and substitute it with the CCJ. The CCJ is to also have original jurisdiction in interpreting the Revised Treaty of Chaguaramas, under which regional countries will transform their trade and functional cooperation bloc into a seamless economic space - the Caribbean Single Market and Economy (CSME).

The establishment of the CCJ as Jamaica's final court will require either a two-thirds majority in both houses of parliament and/or the winning vote in a referendum.

October 21, 2009

Confidence in the CCJ

Source : Denys Barrow SC

It may well be true that Caribbean people lack confidence in our domestic legal system and yearn more for justice than they yearn for being able to boast of having their own final appellate court, the Caribbean Court of Justice. This is the thesis of an article by Dame Bernice Lake QC that explains the improvements that need to be wrought to “secure a judicial ethos in which the citizens are so confident of the quality of justice which comes out of the system that they would readily embrace and give sanction to the CCJ.”

It is regrettable that the writer purported to validate this lack of confidence as being not merely a ‘feeling’ of Caribbean people but as based on statistics. The writer stated: “When it is appreciated that nearly 90% of the cases going up from the Court of Appeal to the Privy Council are reversed, it is a matter of numbers, not feeling.” It is inferred that “the Court of Appeal” to which the writer was referring was the Eastern Caribbean Court of Appeal. The statistic the writer uses is utterly wrong!

Statistics on appeals to the Privy Council are freely available on the internet; see http://www.privy-council.org.uk/output/Page34.asp .

The last two years for which Privy Council statistics have been posted are 2006 and 2007. Those statistics reveal that in 2006 the Privy Council disposed of 6 appeals from the Eastern Caribbean states. Four appeals were allowed and two were dismissed. In 2007 the Privy Council disposed of 9 appeals from the Eastern Caribbean states. Five were allowed and fourwere dismissed.

It is therefore egregious to propagate the statistic that 90% of the decisions of the Court of Appeal of the Eastern Caribbean Supreme Court that are sent to the Privy Council are reversed.

A comparison of the performance of the ECSC may be made by examining the statistics of the House of Lords on appeals from the Court of Appeal of England and Wales for the last year that is currently available online; see: http://www.parliament.uk/documents/upload/JudicialStats2006.pdf

In 2005 a total of 65 appeals from the English court of appeal were decided by the House of Lords. Forty five appeals were allowed and twenty were dismissed. If it makes sense to use bare statistics to determine the quality of a court’s performance, the “market product” of the Eastern Caribbean Court of Appeal is better than that of its English counterpart!

It is also regrettable that the writer should seek to ascribe blame for lack of confidence in our justice system only to the judges and ignore the extent to which lawyers share responsibility when judgments are reversed. It is a truism that the quality of a court’s decision in any given case is affected significantly by the quality of the input from the lawyers who argue the case and thus define for the judges the propositions of fact and law between which the judges must choose. In one of the cases on which the writer relied to show poor judicial performance by the court of appeal that “denudes confidence”, the decision of the court of appeal to apply to that particular case of wrongful dismissal a legal approach that is generally applicable only to cases of unfair dismissal flowed directly from the fact that counsel on both sides conveyed to the court of appeal that the approach the court should apply was the one the Privy Council said was the wrong approach.

The need to resist being too quick to see it as incompetence on the part of our judges when they are reversed and not as understandable error or reasonable disagreement between two levels of courts is demonstrated by the reverses of the writer herself. The wrong statistical premise that is the foundation of her article has already been shown. A further error on the part of the writer is her failure to appreciate that in the case to which she referred concerning the three (not two) foot public road, the court of appeal decided that the original path should be held to have been increased to thirty feet because the relevant legislation expressly provided for payment of compensation for that increase. It is simply wrong for the writer to suggest the court of appeal failed to “come to grips with the citizen’s constitutional right to the protection of his property guaranteed by the constitution.” Rather, the Privy Council decided to vindicate the right of property by upholding the right to the land itself rather than by upholding the right to compensation for land compulsorily acquired by the state. As it often does, the Privy Council decided the appeal on a basis that was not litigated in the courts below.

Too ready a wish to criticize can lead to over simplification. It would overly simplify the writer’s thinking to say that all she has written is to be ignored because she wrote about “the Common Law tort of Wrongful Dismissal and the Statutory tort of Unfair Dismissal” when quite clearly either form of dismissal arises out of the contract of employment and is a matter of contract law or employment law, and not the law of tort. It is that sort of carping that opinion leaders in the Eastern Caribbean and elsewhere must avoid when they examine the quality of justice produced by our judges and lawyers, of which we can be justly proud.

If it is true that Caribbean people lack confidence in our domestic legal system that diffidence may be a matter of feeling, not of numbers. But if the feeling does exist it may be no less a barrier to popular embrace of the Caribbean Court of Justice than if it were statistically justified. It is a feeling of which we must rid ourselves, not promote. The Caribbean Court of Justice has been operating for five years now and has earned highest praise within the region and internationally for the quality of its decisions. Instead of lowering appreciation for the CCJ by statistical calumny of our domestic courts from which most of our CCJ judges come, we should raise appreciation for our domestic courts by looking at the CCJ to see the excellent quality of judges we have always been able to produce.

Also published : Have some confidence in the CCJ! ‘Caribbean should be proud of our judges’ | St. Lucia STAR