By Anselm Caines
For many years, a debate has raged across the Caribbean Community concerning the suitability of the Privy Council to continue as our final court of appeal or whether the judicial interests and integration pursuits of the region would not be better served by fully endorsing the Caribbean Court of Justice (CCJ).
Several reasons have been put forward in support of this; our home grown institution. However, for the sake of brevity, I shall only focus on a few, which I think are central to building confidence in the CCJ as an institution of merit and meaning!
One of the grave and glaring defects in our legal system is the relatively poor access to justice, particularly at the level of final appeals. The sheer distance of the Privy Council in London from the Caribbean obviously poses a problem to those in the region who seek affordable and accessible justice. This problem is further compounded by the fact that, in the Caribbean, there is still a relatively high level of poverty.
Conversely, the CCJ is a court that is based in Trinidad. This obvious benefit in terms of location is further buttressed by the fact that the CCJ can travel to the various countries of the region to hear disputes, therefore, actually bringing justice to the people of the Caribbean!
Throughout the region, many have also expressed concern that politicians will seek to interfere with the independence of the CCJ. After all, there is a tendency for some politicians to try to exceed their powers and tamper with the judicial process.
However, the court has been structured so that the judges of the CCJ are NOT appointed by the politicians. This contrasts with other judicial bodies such as the European Court of Justice and the United States Supreme Court, whose judges are political appointees!
With the CCJ, the judges can only be appointed or removed by a Regional Judicial and Legal Services Commission, the members of which are not politicians, neither are they selected by politicians. Rather, they consist of members of civil society and distinguished jurists, appointed by a number of Caribbean institutions and individuals such as the Commonwealth Caribbean Bar Association and the Dean of the Faculty of Law of the University of the West Indies.
I am also acutely aware, that there are some within the region who have cast a cloud of doubt on the quality of our lawyers and judges. Such detractors ought to be made aware that many of our region’s legal talent have served with distinction at the international level.
In fact, the two United Nations’ specialized Criminal Courts are headed by Caribbean nationals! Jamaican Judge, Patrick Robinson, is currently the President of the International Criminal Tribunal for the former Yugoslavia and our very own, Sir Dennis Byron from St. Kitts, presently serves as the President of the International Criminal Tribunal for Rwanda. Time and again, the Caribbean has produced men and women of great legal acumen who have shone on the world stage. Are we therefore, to question the capacity of our home grown legal talent to deliver quality justice at the CCJ? I await the public’s verdict!
Nevertheless, I am sure, that there are those who have and will continue to argue that we ought not to waste financial resources on the CCJ when such resources can be used to upgrade our local courts. While the physical infrastructure of some of our local courts certainly needs to be improved, does this suffice to substantiate further delay and denial of the CCJ?
In all probability, when plans were being put in place several decades ago to establish the University of the West Indies, there would have been those who expressed analogous sentiments of doubt and diffidence. Some would have contended, that the educational infrastructure throughout the region was in a dilapidated state; why invest all this money in one institution?
Yet, more than 60 years since its inception, the University of the West Indies has blossomed into a regional centre for academic achievement and excellence in higher education. It has cultivated some of the brightest minds who have helped to shape the social and economic landscape of the region. Similar levels of success have been attained with the Caribbean Examinations Council (CXC) and the Eastern Caribbean Central Bank (ECCB).
Our regional institutions have performed well, whenever we have accorded the requisite resources and afforded our staunch solidarity! Why can’t the CCJ do the same for St. Kitts and Nevis and the wider Caribbean region?
What continues to puzzle me, however, is that some individuals throughout the Caribbean still wish to retain the Privy Council, when the judges of that very court seem to be anxious for the day when we will ‘pack up our georgie bundle and leave’!
In a recent interview, Lord Phillips, the President of the new British Supreme Court, said that he was searching for new ways to curb the "disproportionate" time that the Privy Council spent hearing appeals from INDEPENDENT Caribbean countries and that "in an ideal world", we would STOP using the Privy Council and set up our OWN final courts of appeal. In light of this intention, would it be far-fetched for us to conclude that sooner rather than later, the Privy Council will close their doors on us and force us to use the CCJ?
Our Caribbean countries need to become more proactive and abstain from this nonchalant, ‘wait and see’ approach, whereby they are forced to abide and respond to the changes implemented by the developed world!
However, while many of our political leaders claim to support or are moving towards adopting the CCJ; none seem to be getting closer. In St. Kits and Nevis, Prime Minister Douglas has said that despite the fact that our country does not necessarily have to hold a referendum if we wish to advance to the CCJ as our final appellate court, he prefers to do so with the other OECS countries, as the entirety of the OECS Supreme Court system.
Although the Prime Minister’s position is indeed noble, and I suppose is in keeping with the theme of regional unity and his present role as OECS Chairman, I think that it is important for him to bear in mind that other OECS territories actually do require a referendum and success in a referendum is difficult to achieve. A case in point is the November constitutional referendum in St. Vincent and the Grenadines.
Given that St. Kitts and Nevis is not required to hold a referendum, we ought to go ahead and accede to the appellate jurisdiction of the CCJ and to this end, begin to build momentum within the OECS.
The time is now for our leaders to awake from their slumber and pursue the CCJ with vim and vigour. Accordingly, I hope that the next Federal Government will take the cue and adopt a more broad-based educational approach that instigates informed and inspiring public dialogue on the issue. Likewise, I beseech the various opposition parties not to hold the process hostage to any partisan political posturing, as has been the case in other Caribbean territories.
I also trust that the Bar Association will assist the government and make greater contributions to the cause of raising the profile of the CCJ at the national level.
Certainly, we cannot expect the average Kittitian or Nevisian to become enthusiastic and develop faith in regional institutions such as the CCJ, if our political leadership and legal professionals, fail to pursue and promote such institutions with tenacity, veracity and alacrity!
I encourage our Federal Government and other Caribbean governments to step forward and seize the moment! Let us view the CCJ, not as a “plunge into the abyss to be eschewed” but rather, in the words of former Prime Minister of St. Lucia, Dr. the Hon. Kenny Anthony, let us recognize the CCJ as a “Leap towards Enlightenment to be embraced!” RALLY BEHIND THE CCJ!!!
