Byron Blake | Caribbean countries’ final court: Alternatives to the CCJ

The law and the apex court which administers it are not trivial matters. The monarchs who reigned supreme in the United Kingdom between the creation of the Union of England and Scotland in 1707 and 1838 kept Caribbean people in slavery by policy.

The Judicial Committee of the Privy Council was established in 1833 as the ultimate appeal court for what were then the colonies of the British Empire. The timing might have been coincidental, but we doubt it. The law for the abolition of slavery was passed in 1834.

Britain continued to make policies and laws for the colonies. In Jamaica and Trinidad and Tobago, that ended in 1962. The monarch no longer influences law or policy, but many colonial laws and policies remain. The apex court ensures their continuity.

The monarch can use the apex court to influence policy. The classic case relates to capital punishment. The monarch’s government promoted capital punishment by various means since 1707. It built every gallows in the English-speaking Caribbean. However, almost 300 years later, it had an epiphany. It abandoned capital punishment in Britain and expected its former colonies to follow. They baulked. The monarch turned to her Privy Council and ensured that her policy objectives were achieved. The law remains, but there has been no execution for 40-plus years.

An independent country ought, by deliberate action, to determine its apex court. The court ought to be independent. Most CARICOM countries have an apex court by default. The Jamaican Independence Constitution, for example, did not envision the Privy Council to be permanent; hence it was not entrenched. To maintain it invites continuous debate.

By not adopting the CCJ, for which they have paid in full, these CARICOM states are signalling that they have a superior alternative. We could see two possibilities: (i) continued use of the Judicial Committee of the Privy Council (the Privy Council); and (ii) a national court of final appeal. We discuss them, in turn.

THE PRIVY COUNCIL

The Privy Council has four attributes. First, it has a long history of dealing with Caribbean cases and hence precedents. Second, it is remote; that is, it is unlikely to be influenced by Caribbean governments. Third, it does not have a direct financial cost to Caribbean governments. Fourth, and this might be strategic, it can now operate as an itinerant court. These attributes are not without question.

The efficacy of a long history of adjudicating colonial legislation, some dating back to slavery or immediately after, is questionable. Many of those laws were designed to deny most of the population access to productive resources, thereby keeping them tethered to the plantations. Those are not the laws which independent countries should be facilitating 200 years later. The Privy Council is insulated from Caribbean governments, but not from His Majesty’s Government. The capital punishment issue discussed in the opening paragraphs is illustrative.

Justice depends on access to the court. There are at least two considerations here. One is the distance and the associated costs. London is geographically far from the Caribbean, and airfares and hotel rates are high and subject to inflation. The net effect is that the cost for an appellant and counsel is often beyond the capacity of most of the population. This explains the small number of appeals, other than for murder, that go to the Privy Council. In addition to the prohibitive financial cost, many Caribbean nationals require visas to enter the United Kingdom. The visa process is expensive and capricious. There is no assurance that either client or counsel will receive visas at the required time.

Apart from the individual, a country must have certainty about its final court. There is no certainty about access to the Privy Council. Continued access depends on the King of England and the British Parliament. In the 1980s and early 1990s, there were discussions, including at the level of the Privy Council, about the efficacy of the Privy Council serving countries that maintain capital punishment. The issue was raised by Foreign Secretary Robin Cook with CARICOM foreign ministers. The tune changed when the UK recognised that by maintaining access to the Privy Council, it could effectively stymie policy relating to capital punishment.

After 30-plus years, there could arise a new King who considers the cost of the service to be greater than guarding against capital punishment, which countries have, for all practical purposes, given up.

Regarding operating as an itinerant court, the host country is required to bear the full cost. Caribbean countries could soon have an idea of what that cost might be, as the Judicial Committee of the Privy Council will hold a week of appeal hearings in Bermuda in 2027. We observe simply that those costs will not be low. Each of the five justices will require, at a minimum, a two-bedroom suite in a premium hotel with full service for seven nights, plus accommodation for an aide and security. In addition, the court and security staff will have to beaccommodated.

NATIONAL FINAL COURT

A national final court is the second alternative. We make two preliminary points. One, Guyana had a national final court. Guyana was the first country to adopt the CCJ as its final court. Two, the OECS found it expedient to operate a subregional Supreme Court, and two of those countries, Dominica and Saint Lucia, have already adopted the CCJ as their final court.

The individual member states will have to provide the physical facilities, financing at the required level consistently, provide the staffing, including the judges, and insulate the court from political interference. These were issues formally raised during consideration of the CCJ. What is the probability that countries that have consistently run fiscal deficits will meet these financial conditions? Or that a prime minister who puts a chief justice on probation will be neutral in selecting final-court justices?

There should be a rational debate in the region on the CCJ and the alternatives.

Ambassador Byron Blake is the former deputy permanent representative to the United Nations and former assistant secretary general of the Caribbean Community. Send feedback to columns@gleanerjm.com.