Privy Council asked to declare its position on A&B’s move to the CCJ

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.

Source:  Daily Observer, Antigua

http://antiguaobserver.com/privy-council-asked-to-declare-its-position-on-abs-move-to-the-ccj/

Antigua-Barbuda prepares to join Guyana, others at Caribbean Court of Justice

Source: Demarar Waves

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.

Source: http://demerarawaves.com/2016/03/11/antigua-barbuda-prepares-to-join-guyana-others-at-caribbean-court-of-justice/

UWI lecturer says CCJ is a conundrum

Source: St Lucia Times       

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.

Source: http://stluciatimes.com/2016/03/18/uwi-lecturer-says-ccj-conundrum#

ABEC begins preparations for referendum on CCJ

The Antigua & Barbuda Electoral Commission (ABEC) said it is making preparations to facilitate the vote which will determine whether or not the Caribbean Court of Justice (CCJ) replaces the Privy Council as the nation’s final court of appeal.

To replace the Privy Council with the CCJ, however, would require a constitutional change, which would have to be approved by voters in a referendum.

Said referendum is expected to be conducted later this year.

Chairman of ABEC, Nathaniel Paddy James said a constitutional expert from Grenada is currently drafting the rules for the referendum which will be conducted similarly to a general election.

There is a provision in the Referendum Act which allows for the making of rules by the minister, which is the prime minister,” James said. “They are being drafted and will be looked at and will eventually go to Parliament for ratification.”

James said this is expected to be done in “short order”.

In the meantime, the National Coordinating Committee (NCC) will spearhead a public education campaign aimed at sensitising residents about the Trinidad-based CCJ.

Source:http://antiguaobserver.com/abec-begins-preparations-for-referendum-on-ccj/

Published February 15, 2016

Public education programme on CCJ to start in March

ST JOHN’S, Antigua (CMC) – The Consultative Committee spearheading preparations for a nation-wide public education and sensitization programme ahead of the referendum on whether Antigua and Barbuda should join the Trinidad-based Caribbean Court of Justice (CCJ) says the programme will be launched on March 10.

Head of the Committee, Ambassador Dr Clarence Henry, says “work is in full gear” to ensure that the public education programme meets with the objective of informing citizens on the move by the government to move away from the London-based Privy Council, which serves as the island’s highest court.

Henry said that invitations had been sent to Caribbean Community (CARICOM chairman and Belize Prime Minister Dean Barrow, as well as the prime ministers of St Kitts and Nevis, and Grenada; the President of Guyana and Premier of Montserrat to attend and participate in the formal launch ceremony at which Prime Minister Gaston Browne will deliver the feature address.

He said the Committee has also invited prominent Barbadian jurists Sir David Simmons, Sir Henry Forde and Richard Chetanham to participate in the public education campaign.

“Plans also include visits to Barbuda for consultations with key groups including the Barbuda Council, the Barbuda representative, Arthur Nibbs, the leadership of the Barbuda People’s Movement, as well as church leaders. There will also be a Youth Forum specifically for the youth of Barbuda as well.”

Last Thursday, Governor General, Sir Rodney Williams, delivering the tradition Throne Speech at the start of a new parliament term, said that the government is committed to making the CCJ its highest Court.

He said the issue should be a bipartisan affair, but warned that any attempt to politicize the process could derail plans to move ahead with the campaign.

Henry who is also Antigua and Barbuda’s Ambassador to CARICOM, said  the Committee has “been busily putting together a draft public education campaign strategy that will seek to educate and inform the general public surrounding the CCJ and the Privy Council.

“I wholeheartedly welcome this latest indication of the pending referendum. The government has stated its position and I can advise that we are in the advance stages of our planning for what will be an extensive all-embracing comprehensive public education exercise.

“We will be education, informing, listening and sharing with all in the society; the electorates will be specially targeted; the private and public sectors, civil society, the Opposition, trade unions, and the Bar Association will be among the focus groups down for engagements which hopefully should run in earnest for approximately four months”, he said.

Henry said the inaugural meeting of the Consultative Committee will take place shortly to discuss the draft campaign strategy as well as the other plans ahead of the referendum.

“Already discussions have been held with the Chairman and other members of the Electoral Commission, several groups and potential partners who will be playing a key role in the public education process and management of the referendum.

‘Our draft plan includes focus group discussions; town hall meetings; the establishment of a  website in association with technicians within the Ministry of Telecommunications; engage all forms of media in a massive campaign as well as the publication of a magazine and flyers for distribution,”  Henry said.

He said the official launch, which is expected to be an all-day affair, will also include a public sector Forum.

The CCJ was established in 2001 and while many of the Caribbean countries are signatories of the Original Jurisdiction of the Court, only Barbados, Dominica, Belize and Guyana are signatories to its Appellate Jurisdiction.

The CCJ also serves as an international tribunal interpreting the Revised Treaty of Chaguaramas that governs the 15-member grouping.

Published in the Jamaica Observer, Tuesday, January 19, 2016
Read more: http://www.jamaicaobserver.com/pfversion/Public-education-programme-on-CCJ-to-start-in-March#ixzz3xp9fDEHU

CCJ celebrates 10th birthday

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?

Yes.

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.

Source: http://www.guardian.co.tt/news/2015-04-11/ccj-celebrates-10th-birthday

Published: 

Sunday, April 12, 2015 

The CCJ And The Death Penalty

Published: 

Sunday, May 19, 2013

DR HAMID GHANY 

Source: Trinidad Guardian

Last week in the Senate an interesting exchange took place between Attorney General Anand Ramlogan and some PNM senators during the period set aside for questions to ministers. The essence of the argument was that the Attorney General indicated that he could prepare a draft bill within 48 hours on the death penalty. 

He then challenged the PNM senators to state for the record whether they would be willing to support the abolition of appeals to the Privy Council on criminal matters only and to substitute the Caribbean Court of Justice (CCJ) as the final court of appeal for criminal matters only. There was no response from the PNM senators on this point and so the issue ended in a stalemate.  

However, what emerged was that the Government is still committed to the idea of having the Judicial Committee of the Privy Council replaced by the CCJ as the final court of appeal for criminal matters, while simultaneously moving forward with an amendment to the Constitution to oust the jurisdiction of the court from challenging the constitutionality of the death penalty.

In order to accomplish all of this, such legislation would require a three-fourths majority in the House and a two-thirds majority in the Senate. The last time that the capital punishment legislation was brought to the House, in February 2011, the Opposition PNM did not support it and the bill died at that stage.

The matter was recently revived by the Prime Minister when she indicated at a UNC Monday Night Forum in Barataria some weeks ago that she was prepared to bring that legislation back to Parliament. The Attorney General has now revived the earlier proposal for the substitution of criminal jurisdiction of the Privy Council with the CCJ. The heart of the story lies in the approach that has been adopted by the Privy Council over the years in respect of the death penalty in the Commonwealth Caribbean. 

Since it was established that the death penalty is indeed a proper form of constitutional punishment in the case of De Freitas v Benny (1976)AC 239 where Michael de Freitas, also known as Michael Abdul Malik, had his death sentence confirmed on the ground that it was not “cruel and unusual punishment” to hang him for the murder of British socialite Gale Ann Benson at Christina Gardens in Arima, there have been twists and turns over the years. 

Coming out of that same murder, Stanley Abbott had had his death sentence confirmed in the case of Abbott v Attorney General (1979)1WLR 1342 where Lord Diplock set aside the issue of delay of execution measured in months, owing to the transition of T&T from monarchical to republican status in 1976. However, he left open the issue of delay of execution measured in years and that would prove to be a game-changer for the death-penalty debate in years to come.

In 1982, the Privy Council divided three-two in favour of carrying out the death penalty in the Jamaican case of Riley and Others v Attorney General (1982)35 WIR 279 whereby the issue of delay of execution measured in years was not overcome by the human-rights issue of delay of execution rendering invalid the actual execution itself thereby making it “inhuman and degrading punishment.”

Lords Diplock, Hailsham and Bridge were in the majority, while Lords Scarman and Brightman were in the minority. Some 11 years later, in the landmark case of Pratt and Another v Attorney General of Jamaica (1993)43 WIR 340 the Privy Council accepted the argument of delay of execution as rendering the death sentence unconstitutional if it is not carried out within five years of the sentencing date.

By this time, Lords Diplock and Hailsham had left the bench and some less-conservative judges had been appointed to the British House of Lords as Law Lords. This ushered in an era of abolitionist judges as members of judicial panels who were prepared to adopt an approach that placed them at loggerheads with Commonwealth Caribbean governments on the issue of the death penalty.

Several cases were quite controversially decided that raised issues of whether this was “judicial politics” at work as opposed to the application of existing law. One of them was the Guerra v Baptiste case (1996)1 AC 397 from T&T, which admonished the State for trying to carry out the execution of Lincoln Guerra too swiftly for the murder of Leslie Ann Girod and her baby in Wallerfield.

By 2000, the Jamaican case of Lewis v Attorney General (2001)2 AC 50 constructively abolished the death penalty in the region when the Privy Council held that the decisions of the Mercy Committee were now reviewable, which overturned the ruling in De Freitas v Benny, that states must now await the responses of international human-rights bodies on petitions of reprieve before carrying out executions, and that prison conditions must be taken into account.

Other controversies have arisen over mandatory and discretionary sentencing. However, the death penalty remains in limbo, with the Privy Council precedents holding firm.

Dominica seeks to end ties with Privy Council

Source: NATION NEWS - BARBADOS

Pubished WED, JANUARY 02, 2013 - 4:23 PM

ROSEAU, Dominica –Prime Minister Roosevelt Skerrit says he intends writing Britain later this month seeking permission for Dominica to sever ties with the London-based Privy Council in order to join the Trinidad-based Caribbean Court of Justice (CCJ).

“This month, January 2013 God’s willing, we shall write formally to the British government indicating to them our intention of severing ties with the Privy Council and seeking their agreement on that,” Skerrit said.

“As you know the Constitution of Dominica calls for a negotiated departure with the British government,” Skerrit said, adding “if that is done it will not require a referendum, so we just have to get an agreement with the British government.

“Certainly in 2013 Dominica will move very speedily to recognise the CCJ as our final court,” he said, noting that the island has been paying for the regional court established in 2001 to replace the Privy Council.

CARICOM countries have taken a US$100 million loan from the Barbados-based Caribbean Development Bank (CDB) to meet the operation of the CCJ and ensure its financial independence. 

Privy Council does cost something

by Jeffrey Foreman, Contributor

Source: Jamaica Gleaner

I respond to one aspect of the arguments advanced by Robert Collie in his article 'Use CCJ funding to improve our own courts', published Thursday, January 5.

While no direct cost to maintain the Privy Council is incurred by the Government of Jamaica , there is a cost attached to accessing the court which would either be lessened or not exist at all if the Caribbean Court of Justice were our final court. In this regard, I speak of the cost to taxpayers of having to pay for counsel in the UK or, alternatively, airfare, accommodation and other expenses for anyone travelling to argue before Their Lordships.

Such expenses would clearly be significantly less if the same individuals travelled next door to Trinidad. Moreover, these costs would be eliminated whenever the CCJ, executing part of its role as a roving court, has sittings in Jamaica. To this latter point must be added to the mix the fact that teleconferencing equipment has been installed in all signatory states so that, even if the CCJ was sitting in Trinidad, no government official need pack a single bag to go anywhere.

Individual financial burden

Those same costs faced by the government have to be borne by individuals. It almost need not be said but, whereas the state, even a cash-strapped one like ours, can always allocate funds or raise taxes or borrow to meet its obligations, in this case legal ones, an individual does not have the same latitude.

One can therefore conclude that the cost of accessing the Privy Council must serve as deterrence to any Jamaican who is of the view that justice has not been done at the level of the Court of Appeal. Indeed, most cases from Jamaica involve the State (criminal or constitutional matters), wealthy individuals, or big companies.

In contrast, the trend so far for the CCJ is that more civil cases are being heard by that court. This fact was highlighted by Sir Dennis Byron, president of the CCJ, in a speech titled 'The CCJ and its Integral Role In Development Of Caribbean Jurisprudence', at a lecture hosted by the UWI Cave Hill Law Society in November 2011.

In that same speech, Sir Dennis noted that the court has heard a number of civil appeals in forma pauperis under Rule 10.6 of the CCJ rules.

The cost attached to accessing the Privy Council has the effect of keeping ordinary individuals away from the highest rungs of justice. Indeed, as has been pointed out in many fora, limited access also means that the development of our jurisprudence is restricted to criminal matters and those affecting moneyed interests.

Lastly, I would like to counter the argument being implied by Mr Collie that the money spent to honour our treaty obligations has been wasted on a court which does not help to improve the administration of justice in the country.

In addition to providing the teleconferencing equipment men-tioned earlier, the CCJ, through strengthening the work of Caribbean Association of Judicial Officers, the Caribbean Academy for Law and Court Administration, and the Caribbean Court Technology Users, enhances the administration and delivery of justice in Jamaica and throughout our region.

If, as Justinian noted, "Justice is the constant and perpetual wish to render to everyone his due," most Jamaicans will have to satisfy themselves with a placard-bearing type of justice, for it is all they will be able to afford with the Privy Council as our final court.

Jeffrey H. Foreman is a student in the Faculty of Law, UWI, Cave Hill

Belize to join Caribbean Court of Justice, leave colonial-era British Privy Council

Date Published May 11, 2010

Source - Associated Press

(AP) — The government of Belize says it will stop sending appeals cases to the colonial-era British Privy Council starting June 1.

The order announced by the office of Prime Minister Dean Barrow brings Belize's appeals processes into line with the country's constitution.

The Trinidad-based Caribbean Court of Justice will hear all Belize court appeals filed after May 31.

Barrow's office said Tuesday the change is "a major landmark" for the nation.

The London-based Privy Council long served as the highest court of appeal for many former British colonies. But many of those nations are removing themselves from the jurisdiction of the council, which is made up of members of Britain's House of Lords.

Commonwealth lawyers must ‘build on grand achievements of the past’ – Ramphal

Source: The Commonwealth.org

15 December 2009

Former Secretary-General calls for reform of Caribbean legal system during anniversary law lecture

Shridath ‘Sonny’ Ramphal, former Secretary-General of the Commonwealth, used a lecture hosted by the Commonwealth Legal Forum last week to urge reform of Caribbean judicial structures.

Sir Shridath, offering his support to the newly-established Caribbean Court of Justice, called on Commonwealth countries with links to the British Empire to drop their right of appeal to the UK’s Privy Council, a centuries-old judicial and political body, warning that failure to do so would leave them “loitering on the doorstep of colonialism”.

He said: “Now that we have created our own Caribbean Court of Justice and done so in a manner that has won the respect and admiration of the common law world, it is an act of abysmal contrariety that we have withheld so substantially its appellate jurisdiction in favour of that of the Privy Council.”

‘Language, learning and law’

During the hour-long lecture to mark the 60th anniversary of the 54-member association, on 7 December 2009 at Marlborough House, London, UK, the Guyanese former Secretary-General touched on the abolition of slavery and the founding of the modern Commonwealth.

Sir Shridath, who served as Secretary-General between 1975 and 1990, said that “language, learning and law” were the three “most precious” elements of the association’s heritage.

But, calling on Commonwealth lawyers to “build upon the grand achievements of the past”, Sir Shridath hit out at the apparent “hesitancy” of Caribbean judges, lawyers and governments to support the Caribbean Court of Justice.

Just two Caribbean countries among 12 – Guyana and Barbados – have conferred the power of appeal to the CCJ, despite all signing a 2001 treaty establishing the court, he noted.

Sir Shridath, a former Attorney General of Guyana, meanwhile called on Caribbean governments to be “assiduous in demonstrating respect for all independent constitutional bodies”.

Death penalty issue

He added that the appeal court issue was further “complicated” by the issue of the death penalty, which is maintained by a number of countries in the region. Mr Ramphal said that the Privy Council had been “rigorous in upholding Caribbean appeals in death sentence cases”.

The Privy Council

Sixteen Commonwealth member states retain the UK’s Privy Council, a British body of political and judicial advisers to the UK head of state, as their final court of appeal. Appeal cases are heard by the council’s Judicial Committee, composed of senior British judges who also sit in the UK’s Supreme Court.

He continued: “Someday the Caribbean as a whole must accept abolition of the death penalty. I believe they should have done so already, but in a situation of heightened crime in the region popular sentiment has been reflected in political reticence.”

Sir Shridath’s comments follow those of Lord Phillips, Chairman of the Privy Council’s Judicial Committee and President of the UK’s Supreme Court, who in September attacked the “disproportionate time” he and fellow judges spend on Privy Council cases derived from Commonwealth countries.

‘An ideal world’

Lord Phillips, claiming that up to 40 per cent of the judges’ time was spent on Privy Council cases, said that “in an ideal world” such countries would instead establish their own courts of appeal.

Sir Shridath said that he backed Lord Phillips’ remarks, adding: “Many a Caribbean lawyer, many Caribbean persons, and at least some Caribbean government’s welcomed [Lord Phillip’s] urging.”

CCJ judges: Quality, method of appointment debated

Source: Jamaica Gleaner

Published: Monday December 7, 2009

Robust and sometimes fiery debates erupt when there is an argument about Jamaica making the Caribbean Court of Justice (CCJ) its final court of appeal, replacing of the Privy Council. Questions of jurisprudence come to the fore in these debates which seem set to rage on some more, with persons adamant that the present judges on the CCJ Bench do not fit the bill.

While it is receiving strong support in some quarters, prominent attorney R.N.A. Henriques, is not yet ready to welcome the CCJ and its judges, simply because he does not believe that the judges on the court now are of the same standard as those at the Privy Council. He said that if the CCJ will replace the long serving judges of the Privy Council, the judges chosen should be of equal or higher calibre. He seems less than impressed with the current set on the CCJ bench.

Incorrect process

"In my view the selection process for the CCJ was not correct. I know that the CCJ respects transparency by advertisements inviting applicants for appointment as judges of the court. But persons of judicial excellence are not going to demean themselves and apply. I believe that the court should have invited judges who they think are of the highest quality," he told The Gleaner.

Henriques would like to see this changed. He even suggested inviting some members of the Privy Council to sit on the CCJ to help the court in its infancy.

However, Michael Hylton, another prominent Jamaican attorney, believes that the process by which the CCJ has gone about attracting judges ensures that the best minds are contracted.

"There has been a criticism of the benches here that, unlike the culture in England, where the top lawyers become the top judges, here that is not the case. I believe the CCJ has done all the right things to attract the best people, research facilities and pay," he said.

Questions about CCJ suitability surfaced again when Lord Nicholas Phillips, the man now heading Briitan's new Supreme Court, in a recent interview with the Financial Times, lamented that more than 40 per cent of the time of Britain's most senior judges is spent on Privy Council cases.

"I personally would like to see it reduced," he said.

That set off another round of national discourse with some of the nations top lawyers giving their view about the quality work of the court' judgments thus far.

Long overdue

Long-time CCJ advocate David Coore says it is due time Jamaica makes the CCJ its final court. Coore, a lawyer before Jamaica gained Independence in 1962, said the question of the quality of judges in the Caribbean should not be an issue.

"I have always been a strong supporter. No doubt the Caribbean has produced jurists of the highest quality and we have shown that in the past, in the days of the Federation (of the West Indies), with the Federal Court of Appeal and the quality of that appeal court," he said.

Coore said the quality of the jurisprudence should also not be questioned, as the judgments that he has seen from the CCJ, which has been in operation since 2005 have been well thought out and reasoned.

Hylton agrees with Coore.

"In the four years since it has been in existence, there have been some excellent judgments. I have heard no criticism of the judgments; the only criticism I have heard is that they have little work to test them," he said.

One trade case

Since its inception, the CCJ has heard 39 cases. However, only one of them has focused on human rights. The others have dealt with trade issues.

Anthony Gifford is another lawyer who has praised the makeup of the court and the decisions they have made. In an emailed response to Gleaner questions, Gifford said that while it is too early to judge the record of the court, the judgment in the Joseph and Boyce case was sound.

"The judgments in the death penalty case, Attorney General of Barbados vs Joseph and Boyce, are particularly impressive, drawing on international human-rights precedents to reach a just decision which saved the lives of two men. Seven judges gave six separate judgments; in the Privy Council, you never get more than one judgment unless there are dissenting voices," he said.

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.