The intense debate on whether the Privy Council should be replaced as the final Court of Appeal is a matter of great importance and is a serious issue to be determined as we, in Jamaica, journey on the road to abandoning The Queen and becoming a republic.

Whilst becoming a republic is a politically charged issue with our political opponents scrambling over each other in the quest to garner notoriety and political points, we must not lose sight of the more important issue: that is, the delivery of justice to each and every Jamaican regardless of who they are.

Those of us who support the retention of the Privy Council are not anti-Jamaican or anti-black; we abhor slavery and all the trappings, but justice does not wear the colours of race, gender, or class. Justice is universal and not territorial.

It must not escape us as a people either, that we have adopted and maintained the British system of justice, which is embedded in the common law and statue, and we certainly support and make use of the Westminster model of governance, which we also took from our colonial masters.

If the arguments of sovereignty and political independence as a black nation are to be sound, then let us change our justice system and our political system. But with a word of caution, “Be careful of throwing out the baby with the bath water.”

The Privy Council has been in operation since 1833 by an Act of the British Parliament and, for countries settled by British colonialists, has been the final Court of Appeal for decades.

In 1973 the Treaty of Chaguaramas establishing Caricom was revised and with it came changes in the global trading environment and the establishment of the Caribbean Single Market and Economy (CSME). This, no doubt, gave birth to the need for an entity to deal with disputes among Caribbean nations and so the need to develop a body of community law which serves our needs and takes into account our trading interests.

That need gave rise to the Caribbean Court of Justice (CCJ), which serves the criminal and civil law branches of the jurisprudence. The view emanating from the Judicial Institute of Caricom was that the CCJ is a necessary institution for Caribbean independence and development as an independent jurisprudence.

The concerns I have on this issue revolve around justice and the delivery of justice to all Jamaican citizens. As a proud black woman and a nationalist, I am aware of all the trappings of slavery and colonialism, but those are separate issues. We, as a people, need to conduct a careful analysis of the cold, hard facts on the issue as justice wears no colour, nationality, race, or gender and it is time we stop short-changing our people for tribal political advancement.

Those who support the CCJ have advanced only two arguments:

1) That the CCJ will complete the cycle of independence as we shed ourselves of our colonial past, which includes our reliance upon the British judges, who they view as a judicial symbol of colonialism.

2) That the CCJ will provide greater access to justice as people will be able to take matters to a final court at a much reduced cost, if they are aggrieved by the decisions of the local court, and they can do so without having to apply for a visa.

Let me just say that there is no question that the intellectual capacity of judges locally, throughout the Caribbean, and at the CCJ compares favourably with judges elsewhere in the world. That is not the dispute as the Caribbean has produced and continues to produce brilliant legal minds. It is a fact also that, from all we have been able to glean in the short period of existence of the CCJ, it conducts its proceedings with the dignity and courtesy befitting of an appellate court.

Caution, however, should be exercised in moving to the CCJ as our final court.

We must be careful that, as Jamaica moves towards the abolition of the Privy Council, this is based on the trust and confidence we have in the CCJ to deliver justice and not upon any benefit or advantage to any political position or to advancing a particular Government for political reasons. We need to be confident that our political disputes are not going to be adjudicated within our region by people who are influenced by the cultural peculiarities and social and class biases which so affect us in our small space as those are not considerations which should affect or even determine justice.

In the small societies in which we live and operate, it is a fact that cultural, social, and political biases exist. We, as a country and a region, have not been successful in cauterising classism, social biases, etc, and we cannot deny our reluctance to offend politicians who hold the reins of government. Too often there is an unwillingness to strike down the conduct of those who hold high offices and wield political power.

Our measure of the standard of justice that is required for all Jamaicans must be considered by references to decisions made by our local courts. These are the people who are likely to sit on the CCJ. I will outline a few cases so that you can judge for yourself why the injustices were not apparent to our local courts:

1) Pratt and Morgan

The decision of Pratt and Morgan was a benchmark decision of the Privy Council, which established that it is “cruel and inhumane punishment” to have a convict sitting on death row for over five years waiting to suffer the death penalty (hanging) handed down by a court. The Privy Council handed down the judgement declaring that a person on death row must exhaust all his rights of appeal under the constitution within a five-year period or his death penalty will be commuted to life imprisonment without parole. Of course, as a consequence of our justice system’s inability to have speedy trials, meeting that benchmark has proved near impossible, and even with rules regarding adjournment by the prosecution and the defence, we are still grappling with the issue.

Empirical evidence has shown that 70 per cent or more of the adjournments, which is the main cause of delays, are attributed to the prosecutorial arm of the State. Ninety-five per cent of the judges who grant or deny adjournments come from the department of public prosecution. Is there an inherent bias in granting adjournments? In the recent decision of Lescene Edwards, the Privy Council again tells us that for someone to wait 10 years for a trial is a breach of his constitutional right to a ‘fair trial within a reasonable time’. Did we really need the Privy Council to tell us that?

2) Junior Reid and Others

In this case the Crown was inconsistent with the forensic evidence in that the prosecution’s witness identified the accused as the man who fired shots from the left hand side of a right-hand-driven car, killing the victim. The forensic evidence was that the shots were fired from the right. This case began a series of other cases, which included Oliver Whylie vs The Queen, which dealt with the issue of identification and in which the Privy Council set out mandatory directions and warnings to all trial judges to take into consideration or to direct a jury to apply in matters regarding identification. Did we, as intellectuals, need the Privy Council to tell us that “fleeting glances” of assailants (that is, seven seconds of observation) are not safe? I think not!

3) Mark Sangster vs The Queen

There was a robbery at a Western Union and, despite requests, the prosecution and the police failed to disclose the surveillance video. This was of no moment to our court, but the Privy Council demanded video disclosure and justice was done when the video revealed that none of the four gunmen who committed the robbery and the murders was either of the two men convicted for the murder. Did we need the Privy Council to tell us that the failure to disclose the video was unfair?

These are only some of the many matters that have gone to the Privy Council and for which decisions of our court have been overturned. The latest case of Lescene Edwards, which brought this conversation to the forefront again, demonstrates how our courts have failed to deliver justice in a matter that involved suicide vs murder.

Let me further take a few cases from the Eastern Caribbean to demonstrate my fears.

1) The Privy Council intervened to overturn decisions of the local courts in St Kitts in an attempt by a sitting prime minister of 20 years to change constituency boundaries shortly before an election to favour his re-election. The local courts failed to deliver justice and the Privy Council had to step in and objectively analyse the evidence and overturn the local courts’ decision.

2) In the case involving Sir James Mitchell, prime minister of St Vincent and the Grenadines, the Privy Council reversed the local judge’s decision in a commission of enquiry which deprived him of natural justice and due process. Were there political influences that affected the decision of the local court?

3) In what is known as the Noussaint Case (St Vincent), the Privy Council overturned the Court of Appeal’s decision and allowed into evidence a statement of the prime minister made in Parliament which supported a citizen’s claim for constitutional relief because the Government unlawfully expropriated his property, thus ensuring justice was delivered.

One of my concerns, which affects my confidence in the CCJ, is that of the biases and prejudices we experience in our own countries. Judges in London are far removed from local circumstances and conditions and have little knowledge of same. This, therefore, allows them to approach a case with no preconceived notions, biases, or desire to retaliate for real or imaginary grievances. Such fears cannot be dismissed or disregarded in today’s world.

In small societies like ours, predetermined biases and hostility towards individuals because of knowledge of previous incidents, etc are cold, hard facts of professional life commonly attested by many, including myself.

In respect of costs to the litigants, admittedly costs of going to the Privy Council are high, but let us remember this:

1) Appellants are incarcerated and they do not need or are very rarely needed to attend a hearing, only if they are on bail, and with the advent of Zoom, appellants can now be in attendance virtually.

2) The process of appeal to the Privy Council is tedious; however, one of the reasons is that, to prepare bundles of evidence, the format we use in Jamaica is not the format employed in the United Kingdom. It is not difficult to regularise our format to reflect that change and allow the process to be less costly and more streamlined and seamless.

3) In matters concerning criminal law, the UK barristers do excellent pro-bono work, as was done in the case of Lescene Edwards. Point to note is that Edwards is not a wealthy man but he was able to put together enough funds to obtain the justice he deserves. In Jamaica and the CCJ, pro bono work by prominent and experienced Queen’s Counsel (QC) is not available and so far there has been no provision for legal aid. And what is the cost for Jamaicans who are impecunious to go to the CCJ? Will attorneys’ costs be affordable? We do not know.

The late Dudley Thompson, QC, and defence attorney for Jomo Kenyatta once told a judge the difference between hope and expectation as being experienced by his client:

“Mi Lawd, when my client and I came here this morning we hoped for justice, now we do not expect it.”

My fervent hope is that those who wish to remove the Privy Council think carefully about how that will serve our people at this time. There may, in the future, come a day when our confidence and trust in the CCJ will be so demonstrably obvious that we can, with one voice, leave the Privy Council behind as we are sufficiently satisfied that justice will be done. Until then, I live in hope with great expectations, but at this time it is safer for us as a people to join our Caribbean neighbour Trinidad and Tobago and keep the Privy Council while abandoning the monarchy.

Valerie Neita-Robertson, QC, is a senior attorney-at-law.