It is risky to associate independence with the freedom to remain chained to a system that had given legitimacy to the injustices of colonialism. Today, that force remains the ultimate guardian of our legal system—the British Privy Council (PC). It is accepted that the PC has sustained the public’s trust and confidence over the years, and it has contributed to our society positively and in no small measure. No disrespect is intended in supporting the Caribbean Court of Justice (CCJ) to become T&T’s final Court of Appeal.
Many cannot accept that the erudition of Caribbean judges is no less than their colleagues everywhere else, and argue against the CCJ. Among the naysayers are legal professionals who allege the susceptibility of local judges to political influences, not seeing the irony of that view. Still, the CCJ, since its inception in 2005, has distinguished itself in jurisprudence, building a solid reputation of excellence regionally and internationally.
Its eminent judges, past and present, have had years of experience in the practice of international law, and laws of Commonwealth member states. The quality of their judgements is not in question. These are cited in Courts of Caribbean jurisdictions that have not adopted it as their appellate court, including the Jamaica and Trinidad and Tobago courts. Internationally, the UK Supreme Court, the Judicial Committee (JPCC) of the Privy Council, and the Court of Justice of the European Union have cited its judgements.
The CCJ has used profound mechanisms to build public trust and confidence. In 2019 a Judiciary Integrity Scan was conducted by a German corporation—Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). The results showed the institution enjoys an excellent reputation in the states where it acts as the Supreme Court of Appeal and in other Caribbean Community States. There is a high degree of confidence in its integrity and Independence. Detailed information on its impressive record is on its website.
It has a track record of impartial decision-making, including cases involving political issues in Barbados, Belize, Dominica, and Guyana. From inception, all hearings have been available to the public in person and through electronic means. Evidently, transparency is a cornerstone of its strategies to serve the region’s best interest.
Unfortunately, this country’s present context of increasing blood crimes, the lack of convictions, dysfunctional politics—all competing to snuff out the stability of our nation, is admittedly not a time when many citizens would be convinced of the rightness in removing the influential pillar of our shackled past. Independence was never about the romantic symbolism of taking down and raising flags. Instead, it was supposed to be about using our talents and harmonising diversity to shape a unique and beautiful cultural Caribbean identity and destiny. One can appreciate that at independence 60 years ago, the new nation needed time to develop its legal architecture and philosophy. After the first couple of decades of independence, it was time to have moved on.
Half independent: All pillars of society are circumscribed by law, whether economic, social, cultural, or environmental. As long as there is a foreign body with the power to change our laws and that body has constitutional authority to invalidate decisions of our Supreme Court, we cannot claim to be a fully independent nation. One may argue the PC as the final appeal court is the people’s choice. Not so. The people were never given a fair opportunity to decide, and consultation should have happened before we’d signed the agreement to establish the CCJ as our appellate court. If the people are illiterate about the value of the CCJ to development, and if divisive politics continue to relegate the competence of our legal luminaries to an inferior status, then ability to make a choice will remain impaired. Literacy is essential for development and progress. Inherently, our leaders continue to perpetuate an injustice.
Educating the people: The CCJ, as the appellate court, is a creature of the Caribbean Community, established by the Caribbean Heads of Government on February 14, 2001. The agreement was ratified and given the force of law by Trinidad and Tobago Act 4:02 on December 16, 2005—a law which had the blessing of both government and opposition. Seventeen years later, the local tradition of excellence in the legal profession is subordinated to external erudition. In every aspect of life, here and in other places, there will be those whose actions undermine the integrity of institutions. Only societies lacking confidence will concede to a continued status of inferiority.
How do we uplift the people’s minds to the excellence of the CCJ? The people are supposed to be the only real power in a democracy. They must be literate to become truly independent. If the education system and the politicians, by words and deeds, demean their talents and skills—the “native genius” then independence is not about truth.
Political influences: Naysayers speak about a lack of confidence by investors, and that removal of the PC isn’t conducive to an investor-friendly climate. Investors normally agree under contract to arbitration. There’s little if any substance to that argument.
Another view is that distance is conducive to impartiality and fairness, and that smaller and deeply divided societies make it harder for judges to be independent. The appellate court for the British is their Supreme Court. So too, all other foreign countries take pride in their own supreme courts located in their cities, except for a handful of commonwealth countries. Distance and size bear no relationship to integrity. The world is smaller today because of the universality of information technology, and the big countries’ judges can also be politically and religiously influenced. A glance at recent happenings in the USA speaks volumes about big countries’ politics and the law.
And, in 2020, it was reported that British Judge Stephen Males had set aside a judgement by the UK High Court which ruled in favour of Juan Guaidó because the UK had “unequivocally recognised the opposition leader as president”. The legal battle over who controls approximately $2 billion of Venezuela’s gold held by the Bank of England is ongoing. The nature of politics is such that no country’s judiciary is entirely immune or less susceptible to rabid political and geo-political influences.
Time to kick us out: The PC should kick us out. Having guaranteed former colonies the right of appeal to the Privy Council in their Constitutions, it would be hard-pressed to abrogate that right. That could change. We should have been embarrassed when in 2009, the new President of Britain’s Supreme Court, Lord Nicholas Phillips, had lamented the “disproportionate” time senior judges spent hearing former colonies’ legal appeals. He added that “in an ideal world”, former Commonwealth countries would establish their own courts of appeal. One commentator said it was a “minor public scandal” that judges in the country’s top Court spent almost half their time on business “of no interest to anyone in the UK”.
Our pride wasn’t dented. The inferiority complex nurtured by hundreds of years of bondage is ingrained in the national psyche. We took that whip and happily continued to “loiter on the doorstep” of an anachronism. We’re a burden, and Lord Phillips should do all within the PCs power to push us out. However, with Britain’s exit from the European Union, the powers may want to hold on to the last powerful vestige of empire as relevant to any new dispensation with the Commonwealth.
In 2017, the Secretary General of the Commonwealth, Baroness Patricia Scotland, had said that Britain’s vote to leave the EU had triggered considerable dismay among the Commonwealth’s 52 member states, many of which are covered by free-trade agreements with the EU and fear new tariffs in the future. She urged the UK to move faster in engaging with the group after decades of prioritising trade with the EU.
Benefits of the CCJ: There are significant benefits to T&T, including increased and less costly access than the PC. Ease of access has contributed to greater access by ordinary citizens in the countries using the CCJ. Barbados, Belize, and Dominica collectively have experienced an increase of about 400 per cent in cases filed to the CCJ since its inception in 2005, compared with appeals to the PC in the seventeen years prior to these countries assenting to the CCJ. Appealing before the PC is lucrative business.
The CCJ facilitates the development of robust judicial policy, which should be a priority to any country seeking to take charge of its legal affairs. It identifies with the goals and aspirations of the region and is not a remote party to the myriad of issues affecting our daily lives. It understands the critical need for judicial reform. It reaches out to its communities through the CCJ Academy for Law, the Caribbean Association of Judicial Officers (CAJO) and the JURIST Project. It provides opportunities for legal professionals to litigate at the highest level.
T&T Contravention of the CCJ Agreement: Trinidad and Tobago had signed the CCJ Agreement without entering a reservation. We voluntarily agreed to the privilege of locating the Caribbean Court in Port-of-Spain yet chose to operate in breach of its obligations under the CCJ Agreement without shame. At the same time, our leaders fantasise about independence and pretend to have the moral authority to speak about upholding laws.
“The attainment of national independence is to me a search for truth.”—Mahatma Gandhi.