Saturday, February 17, 2018

CCJ — partial adoption as final court?


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Many voices have been raised following the Prime Minister's announcement that the Government is moving to bring legislation to remove the Privy Council (PC) as our final appellate court in respect of criminal matters.

While the decision has been met with wide acclaim, many have questioned why not the whole hog? The PM has responded that she proposes a "phased withdrawal" on the basis of caution and gradualism.

While I do not share the need for caution I do appreciate that the current stated position of the Government is an improvement of what appeared to be the mood just over a year ago. In mid-March last year the PM said in an interview with BBC that abolishing the Privy Council and replacing it with the Caribbean Court of Justice (CCJ) was not a priority with her Government. Thankfully, what a difference a year makes and it is symbolic that the current decision is in the year of our 50th anniversary as an independent nation.

In deciding to abolish the PC (even partially) as our final court we are following in the footsteps of many former British colonies who have done so following independence. Since the 1940s the overseas jurisdiction of the PC has declined with former dominions and colonies deciding to create their own top-level courts as replacements.

One of the first was India in 1949. Other countries that have also done so include Australia (in 1968 and 1977), Bangladesh (1972), Canada (1949), Malaysia (1982), Singapore (1994), Zimbabwe (1980) and New Zealand in 2003. Since then, three Caricom countries have severed links with the PC and adopted the CCJ.

Of the independent former British colonies who still retain the PC, the Caribbean countries predominate. Appeals still come from Antigua and Barbuda, the Bahamas, Dominica, Grenada, Jamaica, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines and Trinidad and Tobago. The only other countries that retain the PC are Kiribati, Mauritius, Tuvalu and Cook Island.

There is precedent for partial abolition of the PC as the final appellate court. In Canada, criminal appeals to the Privy Council were ended in 1933. Moves to extend the abolition to civil matters were shelved during the international crisis of the 1930s but after World War II civil appeals ended in 1949. Cases begun before 1949 were still allowed after 1949 and the final case to make it to the PC was in 1959 Ponoka-Calmar Oils v Wakefield (1960) AC 18.

Singapore abolished Privy Council appeals in all cases save those involving the death penalty or in civil cases where the parties had agreed to such a right of appeal, in 1989. These remaining rights of appeal were abolished in 1994.

Brunei retains the PC in civil cases only. While constitutionally an appeal lies from the Court of Appeal of Brunei to the Sultan and Yang di-Pertuan, by agreement between Her Majesty and the Sultan these appeals are heard by the PC, whose opinion is reported to the Sultan instead of to the Queen.

From the above facts, it is clear that (subject to the Agreement which gives rise to the CCJ) T&T may opt to partially abolish final appeals to the PC and replace it with the CCJ.

For those who may still query the need for or wisdom of the decision to move to the CCJ it is important to note the words of the president of the new Supreme Court of England when he was interviewed in 2009 soon after the court was established. In September 2009, British news media including the BBC, carried reports of comments made by Lord Phillips.

He said he was searching for ways to curb the "disproportionate" time he and his fellow senior justices spent hearing legal appeals from independent Commonwealth countries to the Privy Council in London. The concern was said to be, how the Supreme Court's creation which separated the judiciary from Parliament for the first time, left intact a sister chamber widely seen as a post-imperial anachronism.

It was reported that Lord Phillips said in an interview that he was concerned that the judges who will staff the Supreme Court from next month would as during their previous incarnations as House of Lords justices end up spending as much as 40 per cent of their working hours on Privy Council business. He said: "It is a huge amount of time. I personally would like to see it reduced. It's disproportionate.''

He then questioned whether some Privy Council cases needed to be heard by a panel of five of Britain's most senior judges. He said he was looking to take some of the pressure off the Supreme Court by drafting in Court of Appeal judges to help out. It is evident therefore that under the new administration cases from the Caribbean since 2009 are not priority with the English top judicial officers and we are being allocated the second string judges, so to speak. Lord Phillips went on to say that "in an ideal world" former Commonwealth countries would stop using the Privy Council and set up their own final courts of appeal instead.

In this regard we would do well to recall the words of Justice Adrian Saunders when he advocated (as has former CCJ president Michael de la Bastide) that abolishing appeals to the PC completes the circle of our independence. He pointed out that the scepticism over the CCJ "boils down to a lack of faith, an absence of trust. It is this same scepticism, this absence of confidence that the faint-hearted experienced when we established our own University of the West Indies in Jamaica in 1948; when we began training our own doctors; and when we established our own Council of Legal Education in 1970 to train our own lawyers".

Dana S Seetahal is a former

independent senator