PRIVY COUNCIL OR CCJ – the fear of cutting the umbilical cord?

In a distinguished lecture delivered by the Honourable Mr. Justice Adrian Saunders, Judge of the Caribbean Court of Justice (CCJ) in 2010, he said “it is with some trepidation that I embark, in the Bahamas upon a lecture titled the fear of cutting the umbilical cord … the relevance of the Privy Council (PC) in Post West Indian Nation states”. The Bahamas created history when their Lordships of the PC heard appeals in the Bahamas in 2006 – the first time that August body had sat outside of London. At that time, The Bahamas “has consistently said that it will not replace appeals to the Judicial Committee with Appeals to the CCJ.

I have been following this debate concerning replacing the PC with the CCJ with the latest being sentiment to De La Bastide. Its fifty two years now that we have gained Independence from the British and it will indeed be the final nail in the “coffin” if we rescue ourselves from this last act/reminder of when we were under British rule. Why should we leave it up to the Law Lords of England to determine our last opportunity for Justice and at a heavy cost indeed?

Many of our learned Judges seem to be clamouring for the CCJ to trump the Privy Council, but this should be a matter that must be properly aired in the public domain for Consultation since these learned judges may never have to face these courts. So the question arises then, what are we waiting for? Our current AG is putting his weight behind it. Incidentally, let me categorically state that we do have some of the best minds in our judicial system, but do we have the level of maturity and the level of Independence that is needed to hold such an important decision making issues. It only takes one bad egg to spoil the

lot. The question of trust and confidence is at the very heart of the matter as it is felt in small societies some judges may be reluctant to offend the powerful politicians of the day. Many feel that the only way to get Justice from the abuse of powers by Ministers of Government or powerful Government officials is to go to the Privy Council.

Supporters of the retention of the Privy Council cite a number of cases over the last decade where they felt that Justice was not served by the decisions of local and regional judges and the only way that they could had gotten justice was by going to the PC. In 2015 in St. Kitts, the PC intervened to overturn the decision of local Judges where a sitting Prime Minister of 20 years was trying the change the Boundaries of Constituencies shortly before election in a manner which the Opposition thought would have favoured his re-election. The PC had to intervene in St. Vincent and the Grenadines where a Prime Minister set up a Commission of Enquiry which made findings of fraud and dishonesty against a former Prime Minister (Sir James Mitchell) without giving the former PM an opportunity to properly defend himself and receiving natural justice.

The PC had to intervene in the Antigua power company case and the Toussaint case in St. Vincent. These cases were from people of the Caribbean who felt that they were denied justice in the local and regional courts and pointed to the reluctance of Judges in the Caribbean to offend sitting Prime Ministers. Only recently in Trinidad in the case of Marcia Ayers – Caesar v Judicial and Legal Services Commission, the Court of appeal ruled that the appellant, the former Chief Magistrate and High Court judge had been unlawfully ousted from her office by the JLSC with pressure imposed on her by the Chief Justice on behalf of the JLSC. The JLSC is expected to ask the Privy

Council for an expedited hearing as reported in the media in January this year.

In 2009, the British Government said it had no plans to abolish the Privy council and that individual countries such as Trinidad and Tobago will have to decide whether the PC would continue to serve as our final court of appeal. The decision to do so needs a two-thirds special majority vote of both Houses of Parliament in this country. The then Opposition leader Basdeo Panday said that the UNC has not changed its position against having the PC replaced by the CCJ until there is more confidence in it. “That is not the case” he said in an interview. To date only Guyana and Barbados have replaced the Privy council with the CCJ in our region with the former doing so under some questionable circumstances. Belize acceded to the CCJ in 2010 whilst Jamaica attempted to do so without of the Opposition in Parliament and failed. In 2018 the proposal to replace the PC with the CCJ was rejected with a 52.04% majority. In 2023 the parliament of St. Lucia approved the replacement by the CCJ but an injunction was filed and is currently pending. Jamaica came very close in 2015 where it needed the support of at least one Opposition Senator for the measures to be approved by the required two thirds majority. However, General Elections were called before the reforms could be brought to the Senate for the final vote. Grenada had abolished appeals to the PC from 1979 to 1991 as a result of the Grenada Revolution. In 1991, Grenada restored the PC’s Jurisdiction. In 2016 referendum to replace the PC with the CCJ was rejected by a 56.73% majority. Another referendum was rejected in 2018 by a 55.2% majority. Many Commonwealth Countries have abolished the PC including Sri Lanka, India New

Zealand, Canada. Today a total of 27 Commonwealth countries UK overseas territories and Crown dependencies use the PC.

At the end of the day it is anticipated that the debate would continue as we gain confidence in the system.