The notion we can govern - but not judge - ourselves is illogical!

Source: The Tribune

Published On:Monday, September 28, 2009

By Adrian Gibson

LAST week's comments by the President of the UK's new Supreme Court, Lord Nicholas Phillips, sent shockwaves throughout the Commonwealth as this prominent justice claimed that cases from places such as The Bahamas are burdensome and have occupied too much of the time and resources of the Judicial Committee of the Privy Council (JCPC).

In the case of The Bahamas, which continues to retain the Privy Council, Lord Phillips' comments must have shocked the judiciary/government as this leading British jurist seems to be clearly urging countries to develop final courts of appeal or join regional networks since the London-based JCPC may no longer hear appeals from foreign jurisdictions.

In April 2005, the Caribbean Court of Justice (CCJ) was established as a final appellate court for jurisdictions within the region; however, although The Bahamas helps to fund the CCJ, like several other countries, it does not retain this court as its final court of appeal. Frankly, in the interim, until we settle upon our very own final court, it is in the Bahamas' best interest to continue to retain the Privy Council.

At present, there is no comity among the countries that helped launch the CCJ and were privy to the agreement for its establishment. Thus far, these countries have shown a lack of political will towards taking a unified approach to making the necessary Constitutional/legislative adjustments to give the court the validity it needs to operate as the final appellate court in their respective jurisdictions. At present, the jurisdiction of the Privy Council is limited and focused on certain legal areas. If we are truly seeking to establish our sovereignty, why go from what is perceived in some quarters as a form of imperialism or hegemony to another?

Today, the CCJ is the final appellate court for Barbados and Guyana, the latter having abolished the JCPC as its final court several years before the establishment of the CCJ.

Apex

The Privy Council stands at the apex of our local judicial system and, amidst some controversy, has effectively adjudicated on Bahamian, and Caribbean, issues that have come before it. Contrary to a perception that has arisen relative to the CCJ, the Privy Council appears to be a truly independent body that is not subject to judicial meddling, social forces and/or political pressures. In recent times, in an attempt to familiarize itself with local circumstances, the Privy Council has had repeated sittings in the Bahamas.

The Bahamas' Constitution makes provisions for the Privy Council, stating its purpose as being "for the hearing and determination of appeals from decisions of any court in the Bahamas by a panel of judges." The JCPC is a safety net that has protected the rights of citizens in matters where trials were seemingly inequitable and/or set a poor or disagreeable precedent.

Recent Privy Council decisions, particularly regarding death row inmates and their execution, have been loathed and have led to condemnation of the council and calls for its abolition as a final appeals court. Today, many Bahamians view the Privy Council as an obstacle to hanging death row inmates in this era of rampant violent crime.

In 1993, in their infamous Pratt and Morgan decision, the Privy Council decided that the execution of a person after five years on death row amounted to inhumane treatment. Locally, this meant that many prisoners on death row at that time had their sentences converted to life imprisonment. Moreover, latest hullabaloo came after the Lambert Wilson case, which called for the discretionary use of the death penalty and stated that the mandatory death sentence was unconstitutional.

In these times, where organized and sadistic criminals are openly challenging the authority of the state, the Privy Council has been subject to harsh criticism, particularly because certain decisions do not reflect the local circumstances of countries still referring to it.

Noted jurists, such as Justice A Saunders of the Caribbean Court of Justice, have criticized the JCPC on the basis of its perceived hindrance to the development of indigenous jurisprudence, saying:

"Unquestionably, the existence of a right of appeal to the Judicial Committee of the Privy Council affects the confidence of our Courts. At times, our Courts appear to be always looking over their shoulders across the vast ocean of sea towards the Privy Council for applause and approbation.

"This subjugation or subservience of judicial thought and independence cannot be justified in independent and sovereign states."

While the Constitution must be amended to accommodate our own final court, and while Justice Saunders' view holds true in some respects, it is no reason to join the CCJ. Frankly, at present, the funding of the CCJ poses a problem for that regional high court as it is quite costly, this being of particular note during these economically gloomy times. By contrast, the Privy Council is relatively cheap and all the countries using this appellate court share costs.

Furthermore, if more countries--including the Bahamas--were to adopt the CCJ as its final appellate court, will the judges be chosen on merit or quota? And if so, would this leave some jurisdictions out?

In his book, 'An introduction to law and legal systems of the Commonwealth of the Bahamas", Dr Dexter Johnson asserts that:

"The Privy Council does not compromise our sovereignty in the manner that a regional court might do since the latter comes with the shadow of a political union hanging over it. The regionalists in the Bahamas might wish to merge us into a regional, political and economic entity which would be subject to the central final court of this political unit, the Caribbean Court of Justice. Regional and local politics would dictate the appointments to this court."

Before joining the CCJ, Guyana had already established a precedent by using its Court of Appeal as its final court. Like New Zealand (2003), Grenada and Guyana, it is expected that in the Bahamas there will be an eventual abolition of appeals to an overseer court, in this instance, the Privy Council.

In establishing the present Court of Appeal (COA), the Bahamas' constitution states that "there shall be a Court of Appeal for the Bahamas which shall have such jurisdiction and powers as may be conferred upon it by this constitution or any other law." In order to establish the COA as our final appellate body, the scope of the court must be broadened, even though it is presently the final local court on issues that may fall outside of the jurisdictional purview of the JCPC.

The Bahamas needs to change its approach to jurisprudence, as lower court magistrates should be elected and the use of a local final appellate court should foster greater interpretation of the law in a manner suitable to the people.

However, while an indigenous appellate court is desirable, especially as it is also familiar with local lifestyles/customs, our population size may hamper its establishment as questions will arise about the possibility of a fair trial, the threat that a judge could be openly partisan to someone coming before him/her, politically biased, incompetent and/or crooked.

All must be done to ensure that this court is insulated and that these pitfalls must be avoided. Moreover, there is a need for an independent legal commission!

Bahamian court decisions have in the past been praised by Privy Council jurists for being erudite and correct.

Our eventual delinking with the Privy Council will signal our thrust towards building a nation without limitations, signal a move towards real constitutional reform and enhance judicial creativity.

The notion that we can govern ourselves but are not capable of judging ourselves is a non sequitur that is simply illogical!

Bahamians are so emotive and ecstatic about our independence and sovereignty-- particularly around July 10 every year when throngs of Bahamians are brandishing flags, shirts and other related paraphernalia--but the reality is that unless we engage in major constitutional reform and seriously modify our legal system, our sovereignty in some respects is merely theoretical.

The relevance of the law in local circumstances is best achieved by locals, not by regional or far distant courts whose Law Lords' thinking is not superior to that of the most ethical and scrupulous Bahamian jurists.