Derek Achong

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.