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.