CCJ vs Privy Council: Implications for Indian diaspora

DR KUMAR MAHABIR

RECENT rulings by the Privy Council in England on Caribbean cases have, once again, raised questions about whether local courts can be truly trusted to make impartial judgements, and the integrity of local magistrates and judges. Courts follow a hierarchical structure and must oblige by the precedent set by the highest court for that jurisdiction as set out in a country’s constitution.

Once upon a time, the Judicial Committee of the Privy Council was the final court of appeal for all territories of the British Empire. As countries became independent over the course of the 20th century, many dropped the colonial body in favour of a domestic alternative. Ireland, Canada, India and South Africa were among the first to establish their judicial sovereignty, and 22 more were added to that list from 1933 to 2015. However, eight Commonwealth realms and three republics still utilise the decisions of His Majesty’s lords.

Eight of the territories that rely on the Privy Council are in the Caribbean. An alternate, the Caribbean Court of Justice (CCJ), was established in 2001. But nations of the region have been reluctant to acquiesce to the treaty. Only Guyana, Barbados, Belize and Dominica have done so. The court, however, functions and adjudicates on matters relating to the revised Treaty of Chaguaramas, which also established the Caribbean Single Market and Economy (CSME).

Despite the fact that the CCJ is seated in Port of Spain, TT is most reluctant to accept the CCJ. TT is joined by the Commonwealth realms: Grenada, St Vincent, St Lucia, Antigua, St Kitts, Jamaica and Bahamas, who still have His Majesty the King as head of state. With nationalist Barbados and Guyana becoming the regional powerhouse, the debate between the Privy Council versus the CCJ has intensified. This was the subject of our Indo-Caribbean Cultural Centre (ICC) Zoom discussions.

The following are excerpts from our ICC Thought Leaders’ Public Forum held on 3/07/22. The programme was chaired by Charlene Maharaj and moderated by Shalima Mohammed, both from Trinidad. The topic was The Caribbean Court of Justice vs The Privy Council: Implications for the Indian Diaspora. See the unedited recording of the programme: https://www.youtube.com/@dmahab/streams

Dr Derek O’Brien (UK) said: “I think the closest that Trinidad has come to replacing the Privy Council with the CCJ was a suggestion back in 2012 that it would use the CCJ only for criminal appeals. So, as it stands, I think it’s going to be a while before any of the other countries in the region replace the Privy Council with the CCJ.”

Barrister Rowan Pennington‑Benton (UK) said: “I think actually that the Privy Council here now has quite a lot of cases remotely, and I think that was sped up really by covid, so I mean that gets over perhaps some of the accessibility points…but I think the main points of principle were rightly raised by Dr O’Brien. I think my central point is just that I wonder whether there will be changes in practices of these institutions that might help the CCJ to move its position forward.”

Justice Dr Anthony Gafoor (Trinidad) said: “Barrister Richard Clayton, KC, said that logic suggests that replacing the Privy Council with the CCJ is not a question of whether or not it is possible, but it requires widespread support. Look at the example of the Brexit vote, which of course has caused all sorts of issues within the UK. The desire to take back control through the private consciousness is a sentiment expressed by many people, but as Richard Clayton says, it can only work if that development chimes with the national mood and aspirations.”

Attorney Ganesh Saroop (Trinidad) – substituting for attorney Senator Jayanti Lutchmedial – said: “We really have to get things right at the lower level before we can engage and focus our minds on the CCJ. You have to get things right on a basic level before we can take it to a higher level. To move up, you have to creep before you walk, and we are not necessarily doing a good job at creeping at this stage, because there are fundamental mishaps in our justice system as it currently stands.”

Dr Indira Rampersad (Trinidad) said: “In my opinion, I believe that accession to the CCJ is inevitable. We are going to need a special majority and will need to poll the public through means of public-opinion avenues like a referendum, because I believe it is the democratic way to go, but alas, we don’t have that provision in our constitution. Those islands such as Jamaica have it, but they will have to amend the constitution and bring about the question of constitutional reform in the process. So, the debate will be going on and on, around and around, but we need to ultimately get the facts clear.”

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