Dennis Byron | Case for Jamaica to embrace the CCJ

I would like to begin by a question posed by A.J. Nicholson (A.J.): According to Lord Hoffman, for the citizens of the region, a final local court is necessary, in collaboration with the other arms of government, to drive the sustainable development of the region. Would you wish to comment on His Lordship’s assessment?

Lord Hoffman is not the only Privy Councillor (2003) to express such views. From as far back as 1830, Lord High Chancellor Broughman expressed a similar view, and then in 2008, there was Sir Francis Jacob. The comments attributed to Lord Phillips that the Caribbean appeals were taking up too much of the time of the Privy Councillors and the Caribbean should get its own final court of appeal reflect the view that it was in the interest of the Privy Council to be freed of the responsibility to continue receiving Caribbean appeals. In fact, his thoughts have been implemented by having judges of the English Court of Appeal supplement the panel of the Privy Council, in other words, judges of the same level as the courts from which the appeal come, when hearing Caribbean appeals. This inevitably lessens the value of the Privy Council to our jurisprudence. More importantly, it demonstrates a lack of respect for senior Caribbean appellate judges. These are developments which should diminish our pleasure at any welcome extended by the Privy Council.

I think that the views expressed by Lord Hoffman are accurate. There can be no doubt that the issues affecting the economic development, culture, and social stability of the Caribbean are outside the comfort zone of the Privy Councillors because of their lack of connection to us. Their remoteness handicaps the ability to conceive and apply the concept of transformative justice in a manner that is relevant to our social, cultural and moral norms.

The Commonwealth countries that have delinked from the Privy Council and established their own final appellate court have thrived. There is a long list of them, countries in Africa, India, Singapore, Canada, Australia, Hong Kong, etc. We are in an evolving world and there is increasing evidence of cultural and value conflict between the English and Europeans and the former colonial countries. In other words, developing Caribbean jurisprudence can only be accomplished by a court with closer links to the culture and values of our respective communities in the Caribbean.

I have had to remind myself that self-determination, as the opposite of colonialism is a fundamental human right, and that the determination and resolution of disputes is included in the concept of self-determination.

In 2015, I delivered the UWI Open Campus Magna Carta Lecture on “The impact and influence of the Magna Carta on the Commonwealth Caribbean”. I suggested that the continued use of the Privy Council by former colonies is antithetical to what the Magna Carta has come to represent.

MAGNA CARTA

The Magna Carta was promulgated by the King of England in 1215 to resolve issues of governance arising from disputes with threatened his ability to rule. Today it is a symbol of human rights, justice, and parliamentary democracy. It became celebrated because of two of its clauses:

“no freemen shall be taken or imprisoned or disseised or exiled on in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.; and to no one will we sell, to no one will we refuse or delay, right or justice”.

The powerful statement that penal law must be based on the judgment of one’s peers, although often linked to trial by jury, carries the broader implication that justice should not be administered by a foreign court. That principle is offended when an independent country, like Jamaica, is subject to the judgment of a foreign court like the Privy Council.

The Magna Carta influenced the fight for parliamentary democracy in 17th century England. It inspired the American fight for independence from the British Crown in the eighteenth century and is credited with influencing some of the core values in Caribbean constitutions.

The Universal Declaration of Human Rights has been referred to as Humanity’s Magna Carta, and the 1960 UN Declaration on granting Independence to Colonial Countries and Peoples has been referred to as the Magna Carta of colonial states.

I think it is worth reminding ourselves of some excerpts of that resolution:

“Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to promote social progress and better standards of life in larger freedom,

Convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace,

Solemnly proclaims the necessity of bringing to speedy and unconditional end colonialism in all its forms and manifestations;

And to this end declares that:”

There is no doubt, today, that colonialism was a denial of the concept of the universal equality of mankind and the fundamental freedoms attributed to the Magna Carta.

It was just two years after this declaration in 1962 that Jamaica and Trinidad and Tobago became independent nations. Jamaica was a leader of the British Colonies in Africa and the Caribbean to become independent. But Jamaica has not maintained its leadership as among independent nations. It does not have a national as head of State, while in almost every former colony outside of the Caribbean a national is head of state. Today we are addressing the similar reluctance to grasp independence with regard to the judicial arm of government. In 1960, the Privy Council was the final court of appeal for most of the then-British Empire. Today there are only 11 former British colonies that still retain the Privy Council as their final court of appeal. Of these 11, seven are in the Caribbean and the other four are small island states, with populations ranging from less than 100,000 to one million.

IMPORTANT MILESTONE

The establishment of the CCJ has been an important milestone in the completion of the circle of independence for Caribbean states. Establishing this court was an important step towards economic development and social stability throughout CARICOM.

I dare to suggest that being subject to the judgment of the former colonial power, is a breach of our right to human equality, because being subject to the judgment of the former colonial power does not put us on an equal footing with their citizens. For example, as parents we encourage our children to dream of reaching the stars. They can aspire, to become a professional, a prime minister, the Secretary General of the UN, but so long as the Privy Council remains our final court of appeal they could not aspire to the head of the judiciary of our final court of appeal. That dream could only be had by a little English boy or girl.

So, what is the role of a final court responsible for the ultimate adjudication of the human rights to which we are entitled? Shouldn’t it evince our constitutional imperative of the separation of powers, and consider, independently of the executive or legislative arm of government, whether the continued use of the Privy Council is a denial of human rights?

A.J. further asks: The CCJ has, in very short time, earned significant kudos from those who are qualified to judge right across the globe. To what do you attribute such glowing tributes?

It is true that the CCJ has attracted praise in many areas. One such area is the institutional arrangements which guarantee the independence of the court. Several of the academics who have written on the subject have said that the selection processes and the financial mechanisms of the CCJ are models for international courts. One would theorise that the independence of a court is assessed by the independence and other qualities of its selection process and the financial mechanisms for the operation of the court.

One of the most important factors for this praise was the high quality of the debates on the establishment of the CCJ in the Jamaican Parliament. I have seen some of the Hansard reports and observed the intense scrutiny to which the idea was exposed. The insistence of Hon Seaga, and other members of the house, that the court should not be exposed to any possibility of governmental or other political manipulation influenced the impeccable design of the institutional arrangements for the selection of judges and the financial management of the court which guarantees that there is no possibility that the selection process and the financial mechanisms could be tainted by governmental or other political manipulation.

Another important characteristic of the CCJ is the fact that it is an itinerant court, meaning that it can sit and hear matters in any of its contracting parties. In fact, the Court sat in Jamaica in 2013, for the hearing of Shanique Myrie v Barbados. Being an itinerant court offers several advantages. First, it reduces litigants’ travel costs, it allows local Registry staff, attorneys and litigants to interact directly with the judges and other court employees. But most critically, it allows citizens of that state to view their court at work in person which contributes to building trust and confidence in the judiciary.

I would also like to discuss an area of constitutional law that attracted the attention of the Commonwealth Lawyers Association to the extent that it held a webinar at which I presented a paper entitled Battling of the Soul of Caribbean Fundamental Rights and Freedoms.

The impetus for the webinar was the judgment of the Privy Council in the case of Chandler -v- The State (Trinidad and Tobago) [2022] 3 WLR 39; [2022] UKPC 19. The CLA arranged the webinar to discuss the different approaches to the interpretation and application of “savings Clauses” or existing laws clauses by the Caribbean Court of Justice (“CCJ”) in a trilogy of recent decisions (Nervais v R [2018] 4 LRC 545, McEwan v AG of Guyana [2019] 1 LRC 608 and Bisram v DPP [2022] CCJ 7 (AJ)).

Next week: The significance of the CCJ

Sir Dennis Byron is the former president of the Caribbean Court of Justice; this two-part article is from his speech delivered at the launch of The Roadblock: Jamaica’s Resistance to the Caribbean Court of Justice. Send feedback to columns@gleanerjm.com