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/

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.

AG 'may limit' appeal cases to Privy Council

Source: Tribune : www.tribunemedia.net

THE Attorney General's Office is considering limiting the number of appeal cases sent from the Bahamas to the Privy Council in response to comments made by a leading UK judge over the "disproportionate" amount of time the body spends hearing cases from former colonies.

Brent Symonette, Minister of Foreign Affairs and Attorney General, said his office is looking into the implications stemming from the recent remarks by Lord Nicholas Phillips, president of the UK's new Supreme Court.

"As a result of Lord Phillips' ruling, the AG's office is looking at the implications of the ruling and no doubt in short order I will be having discussions with the Prime Minister and my Cabinet colleagues as to the way forward," he said.

It is unclear whether Government will seriously consider splitting from the UK Privy Council in favour of having its final appeal cases heard by the Caribbean Court of Justice (CCJ) -- the only regional alternative to the UK court, or create another final appellate court.

When asked if there would be any constitutional changes if the Bahamas were to leave the Privy Council and sign on to the CCJ, Mr Symonette said: "I don't want to add more to it than I've already done. We'll look at it to see the implications of Lord Phillips (statements) regarding current matters before the Privy Council.

"It may be that one course of action may be to limit the (number of) appeals from the Court of Appeal to the Privy Council -- that might be an alternative."

Although the CCJ was established in 2001, there has been resistance by many countries in the region to use it as a final court of appeal. Currently the CCJ only adjudicates cases from Barbados and Guyana.

Former Attorney General Alfred Sears recently said the country should quickly divorce itself from the Privy Council in favour of the CCJ, claiming that as part of CARICOM the Bahamas has made financial contributions to the judicial body.

When asked to disclose what, if any, financial assistance the Bahamas has given the CCJ, Mr Symonette said he did not know those figures off-hand.

Speaking to The Financial Times newspaper recently, Lord Phillips said he is looking for ways to reduce the "disproportionate" amount of time judges who staff the Privy Council also spend on cases coming from outside the UK, mostly on cases from former colonies.

He also 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.

His comments sent shockwaves throughout the region and were seen by legal experts as a warning that Britain might take steps to shake off the colonial hangover the institution represents, leaving countries like the Bahamas to find or create another final court of appeal.

Future of the CCJ?

Commentary: What is the future of the Caribbean Court of Justice?
By Oscar Ramjeet
Published on Tuesday, September 9, 2008
Source : Caribbean Net News
Print Version

It seems to me that the Caribbean Court of Justice (CCJ), which was on the back-burner for more than three years is no longer there, since it has been completely removed from the stove and is tucked away in some corner. At least the leaders of Trinidad and Tobago, Grenada, St Lucia and St Vincent and the Grenadines are more concerned about OECS unity with the twin island republic, than to initiate steps to remove the Privy Council as the final court.

One wonders why so much time is being spent by Trinidad and Tobago Prime Minister, Patrick Manning to jet to Jamaica, Bahamas, Belize and OECS to sensitise the leaders on his wider OECS initiative rather than to move to join the CCJ as the final court and encourage the OECS states to do likewise. Moreover, more attention is being paid on the implications of the European Partnership Agreement (EPA) as to whether or not Caribbean countries should sign.

It was Trinidad and Tobago as well as Jamaica, the two largest Engllish speaking countries in the region, which were in the forefront for the regional court and both countries now seem to have little or no interest.

I recall in 1990, while I was Solicitor General of St VIncent and the Grenadines, the late Selwyn Richardson, who was the Attorney General of the twin island republic, and Bryn Pollard, former Legal Advisor to CARICOM, journeyed to St Vncent and the Grenadines to woo the James Mitchell government to join the court.

Now, after nearly 18 years, only two countries, Barbados and Guyana, enjoy the benefits of the Appellate Division of the CCJ.

Why? Is it that the governments are reluctant to take steps to put the mechanism in place to remove the Privy Council as the final court, be it by way of referenda or two thirds or three-fourths of parliamentary votes as the case may be, or they do not want to confront the electorates?

It seems to me that the governments will have to woo the opposition to support the move, but they are hesitant to do so. It should be noted that there have been changes in the administration of most countries in the region since the idea of setting up of the court was conceived.

Besides David Thompson of Barbados, there are at least four other Prime Ministers who are lawyers, Herbert Ingraham of Bahamas, Ralph Gonsalves of St VIncent and the Grenadnes and the two new leaders, Dean Barrow of Belize and Tillman Thomas of Grenada, and they should work assidiously to rid the Privy Council as the final court. The region does not only need political independence, but it is high time the Caribbean adopt a parochial approach to the development of Caribbean jurisprudence.

Caribbean jurisprudence and its promotion is not just about civil and criminal disputes and matters of public law, but the CCJ also exercises an original jurisdiction since the court is charged with the resolving disputes between Caribbean countries that are parties to the Revised Treaty of Chaguaramas.

The Jamaica Labour Party was in government when the idea was mooted for the CCJ and they are back in power after more than a fifteen years and they are not taking taking steps to do so. Mr Manning is now busy switching his attention to greater heights, maybe to be the leader for the wider OECS, and is not pushing for his country to join the CCJ, although the regional court is based in Port of Spain.

The Attorney General of Antigua and Barbuda, Dominica-born Justin Simon is advocating a joint referendum of the OECS states to determine if they should adopt the appellate jurisdiction. But this cannot be done since a decision has to be taken by each country. It might be a good idea for Simon to advise his Prime Minister, Baldwin Spencer, who is now the Chairman of Caricom, to try to convince member states to join, and perhaps try to woo the Prime Minister of the country of his birth to do likewise.

In fact, Spencer told an interviewer on Observer Radio's Voice in Antigua that he does not think Antigua and Barbuda is entirely opposed to the Manning initiative. He added, "Our level of functional cooperation in the OECS is very, very high and good. As a matter of fact we have been applauded all over the world for what we have been able to accomplish at that level."

The CCJ was inaugurated in April 2005, more than three years and three months ago, with only two countries joinng, Barbados and Guyana, and there is no indication of any other 10 countries are taking steps to do so.

Besides the experienced and well qualified judges, the CCJ has an excellent support staff and top class facilties where audio files of court proceedings can be obtained hours after.

It is very unfortunate that the remaining 10 countries are not making use of the full facilities of the court, despite calls from several quarters, including the president of the CCJ, for the other countries to join, since the court is being under utililized.

I have written several articles about the CCJ, and even suggested that the authorities consider a lobbyist, perhaps an influential regionalist like Sir Shridath Ramphal, former Commonwealth Secretary General, to woo the governments as well as the opposition parties to accept the CCJ as the final court of appeal in the region.

Bahamas - Truly independent Nation?

A truly independent nation?
Source: Nassau Guardian - Bahamas

Thirty-four years ago, on a still night just after midnight on July 10, when the brilliant black, gold and aquamarine flag of The Bahamas was raised for the first time on Clifford Park, Sir Arthur Foulkes remembered that his heart rate went up a little and that he was filled with a tremendous amount of pride.

"I felt very happy," he recalled. "The only regret I had was that when the flag was pulled up it was still, so there was no flag flapping in the wind – the flag was just hanging around the mast."

It was a time that tens of thousands of Bahamians witnessed and can recall with great pride, but probably few have thought about the significance of the event to any great extent since. In that moment, The Bahamas took complete responsibility for itself, but what exactly have we gained since becoming independent just over three decades ago? And are we truly independent, given our retention of many colonial trappings and the Privy Council?......

But how much asserting can we do given the fact that we have maintained some fairly significant ties to Britain, such as the Privy Council – the country's final court of appeal – and many of the colonial trappings, which for some are a grim reminder of the history of colonialism.

"I have a problem with us swearing our allegiance to the Queen, with the Queen being our Head of State," says Strachan. "To me, we don't have the sovereignty that we suggest we have. Our Members of Parliament and Senators should be swearing their allegiance to the Bahamian people who elected them and whom they are supposed to serve, who pay them and to whom they are answerable.

"I think we have all of these trappings and if we look at it carefully, I don't think there's a moral leg to stand on to maintain these trappings. I just don't. The history of slavery and colonialism alone is enough."

For others, the so-called "trappings" are inconsequential. "Swearing our allegiance to the Queen is just a trapping, her heirs are her ministers, according to law, she has no power of her own," says Sir Arthur. "The British do it very well... the niceties of system, but she couldn't say today, no I cannot appoint you.'"

But if a post like the Governor General means nothing, why have one at all? "It was thought that at the time the connection with Britain ought to be maintained, and as a small country the idea of having a Royal Bahamas Police Force and the royal this and that would add to the country's stability and our attraction as a tourist destination," explains Sir Arthur.

On the more practical side, The Bahamas' decision to retain the Privy Council, which sits in London, as opposed to joining the regional Caribbean Court of Justice, continues to receive mixed reviews.

For well-known lawyer Damien Gomez, replacing the Privy Council, which is used by many countries in the English-speaking Commonwealth, is a non-issue.

"You don't give up something you have to get something less," he told The Nassau Guardian.
"We don't have the technical resources here, the expertise, to readily find a replacement [for the Privy Council] from our own Bar. We are having problems with our local courts. [Former Supreme Court justices are having trouble getting their pensions]. Most of the supreme courts are housed in an antiquated, obsolete building. Modern facilities are not available. For us to seriously speak about having a local final court of appeal we would have to address our own deficiencies, and no government since independence has taken the issue of resourcing the courts seriously."

Despite the expertise and perceived stability that a body like the Privy Council provides for countries like The Bahamas, some still feel that Bahamians should be able to decide what laws they wish to abide by.

"If it is argued for the sake of impartiality or protection against compromise in the judicial system because of our size, I think the next step should be a regional court," says Strachan.....

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