LAW Lord Leonard Hoffmann, a judge in the Privy Council, is in favour of abolishing appeals from the Caribbean to the London-based court and supports the establishment of a final Court of Appeal in the Caribbean.

Emphasising that this was his own opinion since he did not know the views of his colleagues on the matter, Lord Hoffmann told attorneys in Trinidad and Tobago on October 10: “A court of your own is necessary if you are going to have the full benefit of what a final court can do to transform society in partnership with the other two branches of government.”

Speaking at the annual Law Association dinner at Hilton Trinidad in Port of Spain, he said: “It is an extraordinary fact that for nearly nine years I have been a member of the final court of appeal for the independent Republic of Trinidad and Tobago, a confident democracy with its own culture and national values, and this is the first time that I have set foot upon the islands.”

Lord Hoffmann also admitted that although the Privy Council had done its best to serve the Caribbean and had done much to improve the administration of justice, the court’s remoteness from the community had been a handicap.

“We have been necessarily cautious in doing anything which might be seen as inappropriate in local conditions and although this caution might have occasionally saved us from doing the wrong thing, I am sure it has also sometimes inhibited us from doing the right thing,” he said.

The ability of a final court to function as a third branch of government, he noted, depended not only upon its legitimacy but upon the sensitivity of its members to what was both necessary and possible.

Using examples, he said if the question arose as to whether the resources devoted by a Caribbean state to legal aid were sufficient to satisfy the minimum requirement of a fair trial or whether all the resources devoted to prisons were sufficient to maintain civilised standards, it would be very difficult for the Privy Council in London to express a view. “They would have no knowledge of the consequences of their decision one way or the other. It is only a local court which would have the necessary knowledge and legitimacy to say whether the Constitution required more to be done,” he said.

Lord Hoffmann said he did not underestimate the difficulty of creating a final court for the various Caribbean communities but, he noted, “I think that states which have so much in common in their history and values, which can even play cricket together, should be able to do so”.

The judge said he was aware of the debate concerning the establishment of the court and that some were of the view that it would be cheaper, more in accordance with the dignity of an independent nation and less protective than the Privy Council of the rights of condemned prisoners. But all these arguments, he said, trivialised the importance of a final court, which was not a matter of saving airfares, or symbolism or rulings on a single issue. “It is an integral part of how a nation is governed,” he said.

The interpretation which a final court of appeal gave to a constitution could have far-reaching effects on the people of a country, he said, adding that it could change lives for better or worse.

Decisions on how to reconcile statements of human rights with the rights of other people and the practical needs of government were the regular business of a court of final appeal in a democracy, he said.

“These decisions cannot be made on abstract philosophical grounds. They must reflect the practical needs and the values of the society which the court serves,” he emphasised. While human rights in the constitutions of most democratic states were fairly similar, they were not similar when it came to their practical application to real human beings, he said.

“Human rights in their practical and important sense are therefore national, not universal. And that is what makes it so important that the final court of appeal which interprets human rights within a particular society should be part of that society,” he said.

The judiciary, unlike the legislature and the executive, had a different kind of legitimacy, which came from being accepted by the nation as interpreters of law. “To be accepted by the nation they should be part of the nation, representative of the community, sharing its values and history,” he said.

The judge ended by congratulating the people of Trinidad and Tobago on the new court. “It is an historic decision which completes your independence. But it places a great responsibility upon those who choose the judges and upon the judges themselves in the discharge of their constitutional duties,” he said.

— Reprinted from the Trinidad Express