THE Caribbean Court of Justice — a strong court — has recently commemorated 10 years of operation. Caricom member states, as a group, including Jamaica, are parties to the original Jurisdiction of the Court. The financing of the Court, once a point of contention, has been arranged in a way which promotes the Court’s independence. The bench, comprised of nationals of the Commonwealth Caribbean, the United Kingdom and the Netherlands Antilles, has distinguished itself in its work. And, in its president, Sir Dennis Byron, the Court has a world-class jurist as

its leader.

Primarily through its judgements, the Caribbean Court of Justice has done much to silence reasonable critics. This is as it should be, for the strength and value of a Court must ultimately turn on the degree of confidence engendered by the Court’s decisions, its independence from extraneous political pressures, and the erudition of its judges.

But, despite the successful path that the Court has pursued over the last decade, some sceptics remain unmoved. The primary grounds for scepticism rest on issues concerning the appellate jurisdiction of the Court, and so, although the matter has been subject to extensive debate over the years, it may be suitable, encore un fois, briefly to rehearse the main arguments concerning the abolition of appeals to the Privy Council and the replacement of these appeals by access to the Caribbean Court of Justice.

Arguments in favour

There are several arguments in favour of replacing the Privy Council by the Caribbean Court of Justice. One set of arguments turns on the importance of independence to the people of the Caribbean. To take the case of Jamaica, we have recently celebrated the 53rd anniversary of Independence; but, arguably, this independence is incomplete, given that final decision-making power for most types of cases from Jamaica rests with the Privy Council, a court based in London, with judges drawn almost exclusively from the former colonial power.

Throughout most of the former colonial world, many countries that were once politically dependent on the United Kingdom — fellow Commonwealth countries — have cut the umbilical cord with the Privy Council. These countries have been motivated in large part by the desire for self-determination in judicial matters, by the fully justifiable sentiment that we can manage judicial decision-making on our own, and by recognition that judicial independence is an important component in casting aside negative psychological legacies from colonialism.

Knowledge

On a related point, some supporters of the Caribbean Court of Justice argue that “our Court,” as distinct from the Privy Council, will, by definition, have superior knowledge and sensitivity concerning Caribbean realities. This must be correct, for, on a range of cultural, social and economic issues, judges of the Privy Council will not have an immediate grasp of the social context in which a particular case may arise.

True, one response to this line of reasoning could be that a judge may apply universal standards of jurisprudence even without knowing the minutiae of the society in which the case arises. But, the general point remains valid. Caribbean judges who live in the region, and who have worked within Caribbean societies, are apt to have a better appreciation of nuances and values of the Caribbean, nuances and values that may help to determine the correct approach to individual cases.

Caribbean Jurisprudence

This point is sometimes reflected in the idea that the Caribbean Court of Justice should be in the forefront of promoting Caribbean jurisprudence. Various Caribbean leaders — including former Jamaican Prime Minister PJ Patterson and St Lucia’s Prime Minister Kenny Anthony — have embraced this idea: at its core, it means that the Caribbean Court of Justice, in fashioning solutions to judicial problems, must be mindful of Caribbean perspectives, attitudes and circumstances. The development of Caribbean jurisprudence is an objective that is best achieved by a regionally-based Court.

In this regard, it is also important to recall that final courts of appeal, such as the Caribbean Court of Justice and the Privy Council, are frequently called upon to decide issues of policy. These issues present themselves in the form of legal questions, but they require the application of law to local circumstances, and they call upon the judge to assess the likely impact of decisions on local communities. As was noted by the Jamaica Observer (October 19, 2003), Lord Hoffman, then a member of the Privy Council, publicly noted the difficulty which the Privy Council may have in addressing such issues.

Access to Justice

The distance and remoteness of the Privy Council also give rise to other fundamental problems for the Caribbean. Because the Privy Council is physically located more than 4,000 miles away from Jamaica, access to justice at the Privy Council level tends to be well beyond the financial means of the vast majority of litigants in our local courts.

In a fairly recent interview with the Trinidad Guardian (April 13, 2015), Sir Dennis Byron noted that although the Trinidad and Tobago Court of Appeal makes “many judgements each year”, only very few of these are appealed to the Privy Council. For Sir Dennis, this situation may be explained in one of two ways: It is either that the litigants in Trinidad and Tobago are satisfied with the Court of Appeal’s decisions or, alternatively, that if litigants want to appeal this is too expensive or too complicated.

Bearing in mind that persons who take cases to the Court of Appeal level are almost invariably disgruntled with the decision made at first instance, it would be highly surprising to find that suddenly these litigants — or their adversaries — would now be satisfied with the Court of Appeal’s decision. The better view seems to be that appeals from the Caribbean to the Privy Council are limited in number owing to distance and costs.

Costs

Some years ago, the late, and much missed, David Coore QC, pointed out that most of the cases from Jamaica to the Privy Council concerned death penalty matters, or issues brought by corporations capable of paying high costs. He could have added that, even for corporations capable of paying the costs, the case was sometimes not worth the candle. The risk of losing an expensive appeal, and the high ratio of costs when compared to the size of a particular claim, often prompts profit-maximising firms to abandon their appeals. The result is that, for Jamaica, in some years there have been more than 300 cases before the Court of Appeal, but no more than 10 of these proceed to the Privy Council.

Access to the Privy Council is, therefore, severely limited. For the year from April 1, 2014 to March 31, 2015, the Privy Council received in total only 60 applications for permission to appeal, from all jurisdictions that are covered by the Privy Council (The Supreme Court: Annual Report and Accounts, 2014-2015, page 36). When it is recalled that the Privy Council may hear appeals from more than 30 overseas jurisdictions (including nine independent Caribbean countries), it is clear that the traffic is quite low for most countries.

Interaction

Another challenge for the Privy Council concerns interaction with the communities from which appeals arise. When the United States Supreme Court makes various decisions, there is substantial feedback from the community. For example, following Obergefell v Hodges (the controversial US same-sex marriage case), various groups made their views known, pro and con; and there can be no doubt that the judges of the US Supreme Court pay full attention to social reactions to their decision. In contrast, the Privy Council’s physical distance alone makes it difficult for that Court to obtain significant feedback from Caribbean societies.

On occasion, supporters of the Caribbean Court of Justice have also argued that we should leave the Privy Council before they British authorities throw us out. This perspective has been strengthened by comments by some judges, including Lord Phillips, to the effect that Caribbean appeals take up a disproportionate part of the work of the British Law Lords. Some time ago, then Prime Minister Owen Arthur of Barbados also argued that the British Government had presented hints that they wanted us to move along.

In such circumstances, our self-respect should prompt us to proceed, post-haste, to our own court. But, to be fair, the British authorities have sent mixed signals on this point. For, in contrast to Lord Phillips, the Privy Council has been prepared, in recent times, to hear cases in The Bahamas, if not possibly elsewhere in the region. The idea of the Privy Council as an itinerant court has arrived a bit late in the day, but it indicates a willingness on the part of at least some judges to retain their jurisdiction over Caribbean cases.

Arguments against

The arguments against abolishing appeals to the Privy Council tend to turn on the unquestioned standing of that court in the common law world. Privy Council judges are generally members of the United Kingdom Supreme Court. From time to time there are comments in the literature about the narrow social background of the members of Britain’s highest court, as argued for instance by JAG Griffith in The Politics of the Judiciary; but, the technical competence of the Privy Council is of the highest order.

So, it is said, we have access to one of the finest courts in the world as our final port of call, this access is free of cost for individual litigants, and justice is delivered promptly and in keeping with the highest traditions of jurisprudence. Why then should we want to leave this system? Former Prime Minister Edward Seaga is quite firmly in this camp, arguing that the Privy Council provides justice in its purest form.

‘Pure Justice’

Closely allied to the “pure justice” approach is the fear that the Caribbean Court of Justice will be subject to political interference in one way or another. The sceptics — and some others — point out that interference could take place at the point when judges are appointed, or when individual cases are to be decided. They also sometimes argue that, even if Caribbean nationals develop confidence in the Caribbean Court of Justice, foreign investors will not be inclined to accept decisions of this court in the way they have traditionally accepted Privy Council pronouncements.

In addition, there are occasional arguments to the effect that Caribbean judges will not match their Lordships and Lady Hale in their decisions. This viewpoint is sometimes based on the rate at which the Privy Council overturns Court of Appeal decisions from the Caribbean. I believe that this viewpoint is ill-conceived.

It is doubtful that the rate at which Caribbean courts are overturned is any higher than the rate at which the English Court of Appeal is overturned. And, furthermore, when the Privy Council overturns a Court of Appeal decision, this may be for policy reasons — decisions in hard cases — where the law on point is obscure, ambiguous or undecided. The fact that a Caribbean appeal court is overturned in a given case does not necessarily suggest that the appeal court was delinquent in its reasoning.

The future

To date, four Caribbean countries have accepted the appellate jurisdiction of the Caribbean Court of Justice. These countries — Barbados, Guyana, Belize and Dominica — are likely, I believe, to be joined by others over the course of time.

In the case of Jamaica, however, the matter remains subject to well-known political differences. The political stalemate in Jamaica has deprived the country of full participation in a judicial scheme that has proved its worth over the last 10 years. The scheme is not perfect, but it has worked well to date.

Stephen Vasciannie is professor of international law, University of the West Indies, Mona, and a former Jamaican ambassador to the United States of America and the Organization of American States.