THE central question is familiar: Which court should we have as the final decision-making power for our disputes — and why? I return to this well-trodden path for three reasons.

First, the current situation in the Caribbean has not reached an equilibrium point. Only four states out of 12 have accepted the appellate jurisdiction of the Caribbean Court of Justice (CCJ). Another seven states remain with the United Kingdom Privy Council, and Suriname belongs to a different system. On the assumption that there is value in a unified approach to legal interpretation in the English-speaking Caribbean, the current situation is fragmented.

Second, the current situation represents unfinished business from the point of view of the states which entered into the agreement establishing the CCJ. More than 16 years ago 10 Caribbean Community (Caricom) states agreed to accept the Appellate Jurisdiction of the CCJ, with two additional states (St Vincent and the Grenadines and Grenada) joining in the following year. The expectation was that the Appellate Jurisdiction of the Court would embrace at least all English-speaking Caribbean countries. This has not happened.

Losing steam

Third, the debate on the CCJ is losing its steam, or has lost much of it. On March 26, 2018, the Jamaica Observer reported that Grenada’s Prime Minister Dr Keith Mitchell called for a reopening of the dialogue on the CCJ. Dr Mitchell is correct: his statement acknowledges that the debate on the CCJ is not what it used to be. The matter of a final court is of high societal importance. The debate should not be left to wither away just because we have other pressing priorities.

Appellate role

My concern with the CCJ is its appellate role. The CCJ also has an original jurisdiction, primarily for matters arising under the Revised Treaty of Chaguaramas. Original jurisdiction issues turn primarily on international Law, and in the nature of things, it is not likely that there will be heavy traffic to the CCJ under original jurisdiction. In contrast, if the appellate jurisdiction were to be fully utilised by Caribbean States, the CCJ would be a busy court.

Why then do we still have unfinished business of deciding on our final court? Generally, the answer to this question turns on a range of considerations, for there are arguments in support of the CCJ and arguments for the Privy Council. One important task, therefore, is to sift through the arguments on either side to identify the central points of contention.

Sovereignty

One of the strongest arguments in favour of the CCJ is based on the idea of sovereignty. Specifically, supporters of the CCJ suggest that the continuation of appeals to the Privy Council from independent Caribbean countries is prima facie inconsistent with the national sovereignty of each country.

Then Prime Minister P J Patterson put the matter in this rhetorical form in 2000:

“Can our sovereignty be complete when the final word on the law, as an essential ingredient in the functioning of (our) State is still the subject of external decision-making and interpretation by a foreign court that is not indigenous?”

On this view, when we allow final appeals to London we are acting in a manner incompatible with our sovereignty and independence. Caribbean countries have had full sovereignty over our legislative and executive governmental functions since independence. In the same manner, the argument runs, they should, as a matter of course, have full sovereignty over their judicial affairs.

In support of this perspective, it may also be argued that many countries, upon achieving independence or shortly thereafter, have assumed sovereign responsibility over their judicial systems.

Not decisive

But, although the sovereignty argument has had some purchase in the debate concerning the establishment of the CCJ, it has not been decisive. This is so for at least two reasons. In the first place, sovereignty may provide the basis for a political argument in favour of replacing the Privy Council, but it does not require this result as a matter of law. Sovereignty allows the state to identify its own final court, but it does not stipulate that the final court must, of necessity, be located in one location or another.

Secondly, the sovereignty argument is undermined by the observable fact that the CCJ does not fall within the sovereign jurisdiction of any one state. Rather, in just the same manner as the Privy Council, the CCJ hears appeals from a number of diverse countries. If sovereignty were to provide a decisive argument for the location of the final court of Jamaica, that final court would need to be a court established in Jamaica, with Jamaican judges and subject only to Jamaican law. This is not true for the CCJ.

National pride

But technical arguments about the requirements of sovereignty as a legal concept do not fully address all aspects of the sovereignty debate. In some instances “sovereignty” has been used in Caribbean political discourse as a term largely synonymous with “national pride” or “Caribbean self-determination”. In keeping with this approach, some political leaders have argued that Caribbean countries should withdraw from Privy Council appeals because continuation of such appeals offends our pride as a set of independent countries. After so many years of independence we should have the confidence and assurance to conduct our final appellate matters on our own.

Anti-colonialism

Under the broad heading of sovereignty, some supporters of the CCJ have also presented anti-colonial perspectives based on history. Briefly put, the argument is that the Privy Council was established to enforce the bond of union within the British Empire. The Court therefore served to cultivate and nourish the notion that British values, personnel and methods were superior to those of other environments. The Court, in short, was historically a tool of imperial control. With this perspective in mind, opponents of the Privy Council suggest that it is high time we emancipate ourselves from mental slavery, by dismissing the imperial Privy Council.

Distant court

Another set of arguments in favour of the CCJ concern the pronounced inaccessibility of the Privy Council. The Privy Council, based in London, is more than 4,000 miles away. Appeals to the Privy Council are therefore expensive propositions and, in the normal course of events, only financially strong corporate entities, governments and individuals under risk of execution have been able to pursue litigation to that final court.

The net effect, too, is that in most years the Privy Council will hear no more than 12 cases from Jamaica. And, in the case of some other Caribbean countries, there may be no more than one case per year arising from the jurisdiction. Justin Simon, a former attorney general of Antigua and Barbuda, reported for instance that in the 10-year period from 2004, only seven cases were taken from Antigua and Barbuda to the Privy Council.

The limited accessibility of the Privy Council may be contrasted with that pertaining to the CCJ. Not only is the CCJ located in the Caribbean, but it is also expressly created as an itinerant court. Article III(3) of the agreement establishing the CCJ indicates that the Court may move from one jurisdiction to another in hearing cases, a fact which suggests that Jamaican final court cases could eventually come to be heard in Jamaica on a regular basis under the CCJ arrangements.

Itinerant?

The Privy Council has sought to respond to the charge of inaccessibility. One response has been for the Privy Council to travel to The Bahamas to hear cases from time to time (in 2006, 2007 and 2009). This has not been a particularly strong response because funding for the Privy Council’s travels has presumably had to be paid by the Government of the Bahamas. Also, the Privy Council may be reluctant to undertake frequent trips to the Caribbean because such trips could be misconstrued to be visits to well-known tourism centres for purposes of relaxation.

Teleconferencing

A second response by the Privy Council is of more recent vintage. In November 2017, their Lordships heard their first case from the Caribbean — Fishermen and Friends of the Sea v The Ministry of Planning Housing and the Environment — by teleconferencing methods. For this case, the arguments were presented by at least one set of litigants based in Port of Spain, and transmitted to London. If this method becomes a matter of routine, the Privy Council could become much more accessible to local litigants. At the same time, however, litigants may still prefer face-to-face interaction with their final court.

Local knowledge

It has also been claimed, in favour of the CCJ, that this court has the advantage of local knowledge. Judges of the CCJ will almost invariably have greater familiarity with cultural circumstances, life challenges, and social realities in the Caribbean. Final courts benefit from such knowledge: they are often called upon to undertake the balancing of social and policy considerations in making their decisions, and may need a proper understanding of local society to reach confident conclusions.

Caribbean justice

On a related point, some supporters of the CCJ note that this Court is best able to promote the development of Caribbean jurisprudence. Although “Caribbean jurisprudence” has not been fully defined, it connotes the idea that judicial decisions for the Caribbean should take into account Caribbean circumstances. By this approach, the “reasonable man on the Clapham Omnibus” may not see eye to eye with the “reasonable man in Mandela Park”. The CCJ, with its more intimate knowledge of Caribbean society, will reflect local perceptions of justice, reasonableness and fairness – so the argument runs.

Retaining appeals

On the other side, there are also substantial arguments in favour of retaining appeals to the Privy Council. Former Prime Minister Edward Seaga is on record as supporting this Court on the basis that it delivers “pure justice” for Caribbean litigants. On this argument, the strong point in favour of the Privy Council turns on the quality and erudition associated with Privy Council judgments.

In support of this perspective, it is also noted that the independence of the Privy Council is beyond all doubt. Privy Council judges are drawn from the United Kingdom Supreme Court, and are not subject to any form of selection by Caribbean policy-makers. The Privy Council is also funded by the British Government, and can fully withstand pressure from external sources.

Independence

Some critics of the CCJ suggest or imply that the CCJ does not have the same qualities of erudition and independence associated with the Privy Council. Some aspects of this debate will not be easy to measure. But, it is to be noted that the states which established the CCJ made conscientious efforts to ensure that the CCJ would be independent from Caribbean governments on matters concerning the selection of judges, funding and the ability to withstand political pressure.

Moreover, it should be noted that, in its work to date, the CCJ has delivered judgments which attest to the court’s independence of state executives.

Misconceived

Three other arguments in favour of the Privy Council may be briefly mentioned. In the first place, some supporters of the Privy Council have been heard to suggest that the debate on replacing the Privy Council has not been given enough time for circulation. This is a misconceived idea.

The question of replacing Privy Council appeals was mooted in a Gleaner editorial on March 6, 1901, and has been discussed intermittently since then. In the 1970s, in wake of the gradual ending of British colonialism, the discussion gained momentum, and by the 1990s into the first decade of this century there was much debate.

Out of date

Secondly, there have been arguments to the effect that Caribbean governments should improve local court conditions before establishing the CCJ. This argument is now dated. The CCJ has been in operation for more than a decade, and Caribbean countries as a group have committed themselves to funding the court. Jamaica, for instance, has expended more than US$25 million on the court. The court’s operations are of a high standard and the funds expended cannot now be taken to fund local conditions: the arrow is shot.

Thirdly, there have been occasional suggestions that the performance of local courts of appeal in the Caribbean does not provide confidence concerning the operations of a final Caribbean court. Again, the CCJ is in operation and can be judged on its performance to date — that performance has been positive. Also, when local courts of appeal are compared with the English Court of Appeal, the performance of Caribbean judges leaves nothing to be desired. To be sure, local courts have much-publicised problems with backlogs and problems arising from limited resources; but the performance of the judges as a group in deciding cases remains strong.

Referendum

Finally, given that the CCJ debate has lost its steam, the question is whether we should contemplate measures to revive it and, if so, what should be done. On one view, the issue of the CCJ should be put to the electorate in the form of a referendum question. This view has been suggested, in the past by Prime Minister Andrew Holness.

One argument in favour of a referendum is that this would allow each person to express a view on what should be the final court for Jamaica. On this line of argument, each individual has a right to appeal to the Privy Council today; if that right is to be changed or taken away, then the individual’s view should be sought. This is not an altogether convincing argument in law, for rights are changed all the time without the State consulting the electorate.

Breaking logjam

But, even though a referendum may not be required as a matter of law, it could be helpful in breaking the logjam that has developed in relation to the CCJ. For more than 10 years we have been in a situation which falls short of equilibrium. If a referendum could bring clarity to the matter, then the referendum may be a helpful course of action.

On the other hand, opponents of the referendum approach are in no short supply. They argue, in particular, that we should not subject the establishment of our final court to the type of political contestation associated with elections for government: if the Court is established by politics then it will be vulnerable to politics, they suggest.

Extraneous

Opponents of the referendum also point out that voters may be influenced by extraneous considerations when they come to vote on the CCJ. Thus, they suggest, for instance, that a referendum on the CCJ could become a test of political strength at a given point in time, as between the Jamaica Labour Party and the People’s National Party in Jamaica.

To date, there have been two referenda on the CCJ — in St Vincent and the Grenadines and Grenada. In both instances, the majority voted to retain appeals to the Privy Council. This background could prompt reluctance on the part of supporters of the CCJ to enter into the thickets of a referendum in Jamaica. The country’s history involving the referendum on Federation may also dampen enthusiasm for a referendum on the CCJ on the part of supporters of this Court.

The question remains unresolved and, in the meantime, the logjam remains in place.

Stephen Vasciannie is the President of the University of Technology, Jamaica. He is a former Jamaican Ambassador to the United States of America and Permanent Representative to the Organization of American States.