The key architect of the Caribbean Court of Justice (CCJ) has called for an explanation by the Privy Council, as to why its justices have changed their position on allowing Commonwealth nations to access its court.
Sir David Simmons, who is also the former Attorney General and former Chief Justice of Barbados, made the call for the clarification after the President of the Judicial Committee of the Privy Council, Lord David Neuberger announced last week that Antigua & Barbuda was welcome to stay with the judiciary.
“The Privy Council has a duty to explain to the people of Antigua & Barbuda, how this position differs from that adopted by the first President of the Supreme Court of the United Kingdom, Lord Phillips in 2009,” Sir David stated.
Lord Neuberger said that the Judicial Committee of the Privy Council (JCPC) countries were welcome to stay with the judiciary, if they so desire and that plans were under way to assist these nations in accessing the court.
Lord Neuberger’s remarks were made in a pre-recorded interview, last week, during the Youth Forum education campaign — part of a three-month movement to adopt the CCJ as the island’s final court of appeal.
But the UK judge’s comments were quite contradictory to those published by BBC Caribbean, in 2009, when Lord Nicholas Phillips said Law Lords on the Privy Council were spending a ‘disproportionate’ amount of time on cases from former colonies, mostly in the Caribbean.
He added that “in an ideal world” Commonwealth countries — including those in the Caribbean — would stop using the Privy Council and, instead, set up their own final courts of appeal.
According to Sir David, what was more alarming is that the former UK judge had considered drafting Court of Appeal judges to take some of the pressure off their Supreme Court.
The former Barbados Chief Justice also said that the Privy Council’s claim of attempting to improve accessibility to its justice system is just a façade.
“They made an attempt two years ago to go up to the Bahamas – they did go up to the Bahamas – at great expense to the Bahamian Government, as an attempt to suggest that they were going to make justice more accessible to people from the region but they have not been back since because it was too costly for the Bahamian Government,” Sir David said.
Sir David believes that Lord Phillips was sincere, in that judges had found themselves burdened by issues that “didn’t really resonate with them”.
They are more concerned about being members of the European community, he added.
Antigua and Barbuda appears poised to join Guyana and several other Caribbean Community (Caricom) member-states in having the Caribbean Court of Justice (CCJ) as the final court of appeal.
A three-month public education campaign was launched on Thursday in that twin-island nation as the government prepares to hold a referendum to determine whether to replace the London-based Privy Council as its apex court with the Trinidad-based CCJ.
The campaign, which has bi-partisan support, will span three months on a budget which government said will exceed 2 million Eastern Caribbean dollars.
While no date has been set, the government hopes to hold the referendum in June.Already using the CCJ as their final court of appeal are Guyana, Barbados, Belize and Dominica.
Demonstrating a united front, Prime Minister Gaston Browne and Leader of the Opposition United Progressive Party (UPP) Baldwin Spencer who were both at the head table at the launch, urged the electorate to choose the CCJ, contending it will provide easier access to justice.
Spencer noted that “true freedom” will only come when the country and region move from a position “where colonialism and imperialism controlled our decision making processes to a position where we are not only a free people, but we have to make sure we form a society in which our decision making processes are ours.”
Supporting Spencer, PM Browne made “a clarion call for all registered voters in Antigua and Barbuda to support this important institution of regional Governance and sovereignty.”
He said the current final appellate court “is clearly an outmoded colonial construct that was designed exclusively for the wealthy few and has failed to provide broad-based accessibility and dispensation of justice to the masses.”
Elaborating on Spencer’s point on access to justice, PM Browne said justice is not only delayed because of the remoteness of the Privy Council but, in many instances was denied because of inaccessibility associated with the prohibitively high costs.
“Even today, justice is being denied to the majority of our people who find it cost-prohibitive to take their case to the Judicial Committee of the Privy Council,” he said.
“Having the CCJ as an all-inclusive final appellate court, will cure this egregious injustice of exclusivity that has plagued us since 1834,” Browne said, while adding that the fact that the CCJ is an itinerant court (travelling court) will help offset costs for litigants.
Former attorney general Justin Simon QC noted that between 2007 and 2014 about a dozen cases from Antigua and Barbuda were taken before the Privy Council, while over 30 cases were taken before the CCJ which was inaugurated in 2005 and which also serves as an international tribunal interpreting the Revised treaty of Chaguaramas.
Simon said the statistics suggest there is a serious problem of a lack of access to justice as he pointed to two cases where litigants spent hundreds of thousands of dollars to cover legal expenses before the Privy Council.
In a video message, Caricom Secretary General Irwin LaRocque also expressed support from the proposed move, stressing it will “complete the country’s circle of independence.”
He said the court was set up with the highest levels of international standards and steps were taken, and remain in place to ensure there’s no political interference in the management and operations of the court.
According to him, the CCJ is also staffed with some of the “highest intellectual minds” and “there’s no other court in the world as independent” as the CCJ since it is funded under a unique trust fund arrangement and does not have to rely on governments for money.
Another point noted was that the judges are not appointed by the heads of government.
CCJ President Sir Dennis Byron, who applauded the main opposition UPP and the ruling administration for dealing with this issue with “political maturity”, said there’s no evidence justifying public concern of political interference, while he highlighted that the “high quality” judgments of the court are readily available for public perusal.
Explaining the system used to ensure the financial independence of the institution, he said, “The financial arrangements of the court included the establishment of a trust fund where member states invested US$100 million with the expectation that the interest of that investment would fund the court in perpetuity.”
Meanwhile, head of the education campaign mission, Ambassador Dr Clarence Henry said in order for the national referendum to be executed, elections rules must be drafted and that is currently being done by Dr Francis Alexis, a constitutional lawyer based in Grenada.
“He has been provided with all necessary legislation from which draft rules for the referendum will be drawn, in consultation with the Antigua and Barbuda Electoral Commission and there’s also a parliamentary process to be followed,” he reported.
On Friday morning, there will be another session which will be led by youths. Henry said the aim is to ensure the public is sensitised adequately to participate in the referendum which requires a two-thirds favourable majority to allow for the move from the Privy Council to the CCJ.
UWI lecturer, Doctor Hamid Ghany, has defined the Caribbean Court of Justice (CCJ) as a “conundrum”, asserting that Caribbean people are being asked to accept the court as the final court of appeal.
However Ghany, who is a Senior Lecturer in Political Science, told the Times that the first President and Chief Justice of the CCJ, Michael de La Bastide and the current one, the Right Honorable Sir Dennis Byron both became members of the Privy Council in 2004.
The UWI senior lecturer expressed the opinion that as a result, the convention has emerged of having the Chief Justice of the CCJ become a member of Her Majesty’s Privy Council, while at the same time the region is being urged to cut ties with the council.
“As someone who has been involved in drafting two constitutions that’s set up the CCJ as the final court of appeal, I am not objecting to the transfer,” Ghany explained.
The UWI lecturer said he was objecting to the manner in which the concept is being sold to the public.
As far as he is concerned, the CCJ should be sold to the public as being a court that has a superior record of delivery and a certain level of efficiency of service.
“It should not be sold to the public on an anti-colonial basis when you have persons who are members of Her Majesty’s Privy Council who have knighthoods in the same breath telling us we should end the colonial connection,” Ghany observed.
He recalled having asked publicly for an explanation as to why the two lines of argument exist.
Ghany has called on the CCJ to abandon the anti-colonial argument, which constitutes an “intellectual trap.”
“They need to advocate for the court on the basis that it can be more efficient and will serve the Caribbean more efficiently than the Privy Council does,” he declared.
The UWI lecturer, who is Coordinator of the Constitutional Affairs and Parliamentary Studies Unit, Faculty of Social Sciences, UWI St Augustine Campus, delivered a lecture last night at the UWI Open Campus here.
A judge with the Trinidad-based Caribbean Court of Justice (CCJ) says he believes that the criminal justice system in most, if not all Caribbean countries, is “broken”.
Addressing the inaugural meeting of the Advisory Committee on Criminal Justice and Magisterial Reform, under the Judicial Reform and Institutional Strengthening (JURIST) Project, Justice Adrian Saunders said, “it would probably be a fair characterisation to say that in most, if not all of our states, today, the criminal justice system is broken.
Justice Saunders told the two-day meeting that in one CARICOM (Caribbean Community) state, recently, a man who had been in custody for nine years on a murder charge had his case dismissed before the judge, who found that he had no case to answer.
“Nine years in custody; no case to answer,” Saunders emphasised, saying that in another case, a man had been charged with a fairly simple traffic offence and was adamant that he was not guilty.
There is no dispute about the facts, Justice Saunders told the audience, adding that the only issue is the legal interpretation of a very small section of the traffic law in that country, which he did not identify.
“The man and his lawyer interprets that section one way and the police interpret it another way,” the judge said.
He said the case has been going on for over two years and throughout that time, the accused person and his lawyer has been spending two to three “entirely unproductive hours in court only to be told that they must return the following month”.
Justice Saunders gave a third example, saying that judges at the CCJ recently heard an appeal in a case in which a man has been found guilty of rape and had been sentenced to jail.
“He appealed all the way up to us (CCJ). When we examined the documents in the appeal, we discovered that although the man was still in custody, he really should have been released sometime before, because he had already served his sentence,” Justice Saunders said.
“Each of you must have your own examples because these are not uncommon things that happen throughout the region,” he told the gathering, which included judges, directors of pubic prosecution and other members of the judicial system from across CARICOM.
“Frankly, viewed objectively, all of this amounts to an abuse of the people of the Caribbean, especially because it not only involves a massive wastage of time and resources, but it also implicates the liberty of the individual, in a context where there is very little accountability,” Saunders said.
“Caribbean people deserve a whole lot better and it is incumbent upon those who work in the justice sector to work towards its improvement.”
Justice Saunders, however, said that his comments are not to say that there are not valiant efforts being made at introducing very useful reform initiatives.
He said reform initiatives are underway in St. Vincent and the Grenadines and other countries.
“But, it is also true to note that criminal justice reform is not an easy task. It is certainly not as easy to accomplish as civil justice reform,” he said.
The Advisory Committee was established under the JURIST Project and is tasked with reviewing criminal justice and magisterial reform initiatives in the Caribbean and making recommendations for improving the quality of justice delivery and reducing delay in the criminal justice system.
The JURIST Project is a five-year regional Caribbean judicial reform initiative funded under an arrangement with the Government of Canada.
It is being implemented on behalf of Global Affairs Canada and the Conference of the Heads of Judiciary of CARICOM, by the Caribbean Court of Justice (CCJ), which was appointed by the Conference as its Regional Executing Agency (REA).
The project is working with judiciaries in the region to support their own efforts to improve court administration and strengthen the ability of the courts and the judiciary to resolve cases efficiently and in a timely fashion.
Criminal Justice and Magisterial Reform falls under the project’s overarching goal of delay and backlog reduction in courts.
The project is currently being implemented in at least six countries but will be expanded to include other territories in the region.
Special attention will also be paid to building the capacity and skills of judges, court administrators and court personnel to deliver services that address the needs of women, men, girls and boys.
The Advisory Committee is comprised of a broad range of stakeholders from across the region and the criminal justice system including appellate and trial court judges, magistrates, Directors of Public Prosecutions, and a criminologist among others.
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