Senior Reporter
derek.achong@guardian.co.tt
The United Kingdom-based Judicial Committee of the Privy Council has decided against implementing a new rule to determine whether an appeal can be heard by it amid concerns raised by some local attorneys over its effect on access to justice.
In a statement issued last Thursday, the Privy Council announced that it had decided not to proceed with the proposed Rule 23 and the operation of an associated practice direction pending further consultation over a more suitable case management arrangement.
It stated that its decision was based on responses to its consultation with legal practitioners from Commonwealth countries that still use it as their final appellate court such as T&T and Jamaica.
A consultation document for the proposed changes to the PC’s Rules stated that they (the rules) remained largely the same since 2009 with only one minor amendment in 2013 to reflect a revised fee structure.
The changes mostly deal with the establishment of a new case management system known as the portal, designed to deliver an improved end-to-end service to all PC users.
“The purpose of this consultation is to introduce new rules that reflect current ways of working, the introduction of the portal and implementing statutory requirements,” it said.
The proposed rule change allows one Lord Law to consider whether a proposed appeal should be considered.
The Law Lord will decide whether the appeal should proceed or whether the appellant should be made to file written submissions on its merits within 21 days.
The submissions will then be considered by three or more Law Lords, who would determine without a hearing whether the appeal should be dismissed for being devoid of merit.
In a Facebook post, attorney Kiel Taklalsingh sought to solicit strong views on the proposed change to be included in his submissions on the issue.
Taklalsingh initially said: “Rule 23 seems to be an additional filtering exercise which is likely to save time and costs from being expended on appeals which are likely to fail.”
However, Taklalsingh subsequently refined his view as he raised concerns over the effect on T&T citizens, who have the right to appeal to the PC under the Constitution.
He said, “If the Honourable Court is to proceed with this rule, then may I suggest that the threshold test be made very clear in law and published so as to enable the general public (not only lawyers) to understand the test.”
Attorneys Farai Hove Masaisai and Anthony Hosein submitted a detailed 17-page research paper in which they identified the pros and cons of the rule and weighed them up.
“The proposed Rule 23 is in effect a removal of the “third tier system of appeals” of appellate review before a final decision is reached as guaranteed under the Republican Constitution of T&T. It goes against the will of Parliament and therefore against the will of our people,” they said.
They noted that while the rule would have saved time and resources, cases that the Court of Appeal granted approval to challenge and cases where citizens have the right under the Constitution to appeal could be rejected without a hearing by the PC.
Stating that the lack of an oral hearing causes concern about transparency and accountability.
“Decisions made solely on papers may lack the depth and scrutiny that oral arguments provide,” they said.
“The dismissal of appeals without oral submissions could erode public trust in the judicial process and in the court itself,” they added.
They also pointed out ambiguity over determining whether a case is meritorious.
“In legal proceedings, an appeal that is “devoid of merit” may be understood to be one that lacks any substantive legal arguments or evidence that could potentially lead to a successful outcome,” they said.
“In practice, determining whether an appeal is devoid of merit involves a judge’s assessment of whether the appeal has any legal basis or is simply being used as a tactic to delay the judicial process,” they added.
Masaisai and Hosein recommended that the PC withdraw the proposed rule and consider a more nuanced approach to dealing with unmeritorious cases including a set criteria for cases to proceed.
In addition to the proposed rules, the PC also recently announced plans to include local judges for specific cases.
President of the UK Supreme Court and the Judicial Committee of the Privy Council Lord Robert Reed spoke more on the issue while addressing a special virtual lecture at the University of the West Indies, Mona, last month.
“Having the benefit of the opinion of a judge with direct experience of local conditions can only enhance the quality of the PC’s decision making,” Lord Reed said.
He noted that based on the existing legislative arrangements only judges from T&T, Jamaica and the Eastern Caribbean Supreme Court could be appointed as privy councillors to lend their local expertise to cases.
“At present none of the judges from these jurisdictions are privy councillors, but I am hopeful that that position may change before long,” he said.
Former local appointees to the Privy Council include undisputed legal heavyweight Sir Hugh Wooding, who served as this country’s first post-Independence chief justice, and former chief justice Michael de la Bastide, who was appointed in 2004 before becoming the first president of the Caribbean Court of Justice (CCJ).
The move to include local judges was warmly received by Taklalsingh, Masaisai and Hosein.
Taklalsingh said, “Separate and apart from the debate over whether we should retain the PC, I believe the move to incorporate a local judge into the panel of the PC is progressive step by our current apex court.”
“It demonstrates a willingness of the institution to evolve and adapt,” he added.
Masaisai and Hosein touched on the inclusive move in their submissions.
“Indeed, it will contribute to diversity on the Privy Council bench and ease the workload of the judicial officers,” they said.
The protracted debate over a move to replace the PC with the CCJ has been raised periodically over the past few years.
Such a move will require the support of the Opposition as under the Constitution a three-quarters majority is needed in the House of Representatives and a two thirds majority is needed in the Senate.
The United National Congress (UNC) has repeatedly stated that it would not support the move.