By Sir Ronald Sanders
Just in case it has escaped careful attention, the Trinidad and Tobago government does not intend to abolish appeals to the British Privy Council for civil and constitutional matters. Careful reading of the statement, made by Prime Minister Kamla Persad-Bissessar in Parliament on April 25th, clearly shows that the government’s intention is to introduce legislation to abolish appeals to the Privy Council only “in all criminal matters”. The prime minister was clear that only criminal matters “would be ceded to the Caribbean Court of Justice” (CCJ).
What the Trinidad and Tobago government is doing, therefore, is accommodating a half-way house. It is by no means embracing the CCJ fully as the final Court of Appeal for all matters as Barbados, Belize and Guyana have done. And, this decision has been taken despite the fact that in her statement, the prime minister said: “It is almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters (my emphasis); that the West Indies at the highest level of jurisprudence should be West Indian. A century old tradition of erudition and excellence in the legal profession of the region leaves no room for hesitancy in our Caribbean region”.
Yet, hesitancy there is. And the hesitancy – called “caution and gradualism” by the prime minister – seems to be a concern that foreign investors might shy away from Trinidad and Tobago if they could not appeal to the British Privy Council. The prime minister specifically said the Privy Council “has an international reputation as being one of the finest commercial and civil law courts in the world. It inspires confidence in foreign investors”.
The further justification made by the prime minister for retaining the Privy Council in civil and constitutional matters is that it “is conducive to an investor-friendly climate at a time when the international economic order is changing and Trinidad and Tobago is attempting to woo foreign investment from the BRICS (Brazil, Russia, India, China and South Africa) countries”. But, none of these countries appeal to the Privy Council. Indeed, in the cases of India and South Africa – both Commonwealth countries like Trinidad and Tobago – they both abolished appeals to British Privy Council in all matters in 1950. On the evidence of investment in, and growth of, the economies of India and South Africa, leaving the Privy Council has not adversely affected foreign investment in them.
For the taxpayers of Trinidad and Tobago, utilizing the CCJ both as a Court of Original Jurisdiction in respect of the Treaty of Chaguaramas establishing the CARICOM Single Market and Economy, and as a final appellate court for criminal matters, is better use of their money than is now the case where Trinidad and Tobago draws on the court only for matters related to the CARICOM treaty.
And, while this is a welcome advance on the previous position of the Trinidad and Tobago government not to move jurisdiction of any matters from the Privy Council, the half-way approach does not dispense with many difficulties and raises new ones.
There is little doubt that, had the Trinidad and Tobago government decided to embrace the CCJ fully, every other government in the Caribbean Community – including Jamaica – would have acted similarly.
But, there has always been a concern in other countries that Trinidad and Tobago fought for the CCJ’s headquarters on the understanding that it would become a full member of the Court but it has not done so. This issue remains unresolved by the government’s decision to retain appeals to the Privy Council for civil and constitutional matters.
Other countries might also take the view that they too are entitled to retain the Privy Council for civil and constitutional matters in order to “woo foreign investment”. Even if they don’t take such a view, and they do proceed to abolish all appeals to the Privy Council in favour of the CCJ, the anomaly will still exist of the Court being headquartered in a country which is not a full member.
Prime Minister Persad-Bissessar also indicated that even while the government’s intended legislation would give jurisdiction to the CCJ on criminal matters, the Court would be on probation. She said: “We will continue to monitor the developments taking place in both the JCPC (Privy Council) and CCJ including the quality of their decisions in deciding the future course of our judicial system”. However, she had already pronounced on the quality of the Privy Council when in the same statement she said: “It inspires confidence in foreign investors”. Hence, it appears that it is the CCJ whose decisions will be monitored for “quality”.
Despite all this, it took some political courage for Prime Minister Persad-Bissessar to cede final appellate jurisdiction on any matters to the CCJ. It is well-known that, prior to the general elections which brought her to office, there was considerable hostility to the CCJ amongst the membership of her party — the United National Congress. For such courage she should be applauded and encouraged. It may well be that in going no further she has judged what the political traffic could bear among her own supporters.
Still, the decision amounts to continuing to loiter on the doorsteps of the colonial past almost fifty years after Jamaica and Trinidad and Tobago secured their independence from Britain. One spokesman for the Privy Council, Lord Phillips, indicated in 2009 that “in an ideal world, Commonwealth countries — including those in the Caribbean — would stop using the Privy Council and set up their own final courts of appeal instead”. That was typical British understatement for saying it is time to go.
So, while the movement of the Trinidad and Tobago government should be welcomed as an advance, the Caribbean and the process of regionalization might not be sufficiently well-served by it. Full membership of the CCJ by all CARICOM states would better reflect the region’s maturity and confidence in itself.
(The writer is a Consultant and former Caribbean diplomat)
Responses and previous commentaries at: www.sirronaldsanders.com
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