“The decisions of the Judicial Committee of the Privy Council bind us – however nonsensical they may be.” – Justice Seymour Panton, former president of the Jamaican Court of Appeal
In part one of this series, we noted that the Privy Council represents the highest and final court of appeal for cases that are heard in The Bahamas, as well as for other Commonwealth countries and territories that have also retained it for that purpose.
We traced the development of the Privy Council from its precursor in the 7th to the 11th Century, whose membership was made up of the most important noblemen in England, both ecclesiastic and secular, who served as advisers to the king. As time progressed, the early version of the Privy Council morphed into advisers to the sovereign primarily on legislation, administration and justice.
Finally, we observed that what most refer to today as the Privy Council is really the Judicial Committee of the Privy Council, which is the court of final appeal for thirty-one jurisdictions, including many independent Caribbean nations like Antigua and Barbuda, The Bahamas, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and Trinidad and Tobago.
This week, we would like to consider this… should the Privy Council be replaced by a more locally or regionally indigenous institution as a court of last appeal in order to make its decisions more suitable for and congruent with our way of life, our institutions and our values?
Revamping our judiciary
There are several anomalies in the Bahamian judiciary. First, the judicial institution that initially hears capital cases in The Bahamas is the Supreme Court. Decisions of the Supreme Court can be appealed to the Court of Appeal in The Bahamas. Decisions of that Court, if a petitioner is granted leave, may be appealed to the ultimate and final judicial tribunal, the Judicial Committee of the Privy Council.
Consider this: why do we refer to our lower court, or court of first instance in capital cases (other than the Magistrate’s Court), in The Bahamas as the Supreme Court? In many developed, democratic societies, such as “mother” England, from whom our judiciary in The Bahamas is derived, as well as many of Britain’s “previously dependent colonies”, and even in the relatively young United States, the Supreme Court is truly supreme.
The Supreme Court, also called the High Court in some jurisdictions, really represents the highest court of the land, ergo the nomenclature: Supreme Court, from which there is no appeal, except where certain countries have elected to appeal to a higher extra-territorial appeal court.
Another anomaly in The Bahamas resides in the reality that the head of our judiciary is the chief justice of the Supreme Court. The irony of this is that decisions rendered by the chief justice of the Supreme Court in The Bahamas can be appealed to and overturned by the Court of Appeal and the Privy Council. Therefore, how can the chief justice truly be the head or chief justice of our judiciary if his decisions can be overturned by not one but two other courts?
We therefore suggest that our Supreme Court should be renamed in order to do away with the impression that this court is the highest court in the nation. It could be renamed “the High Court” or “the Superior Court” which clearly depicts that it is “superior” or more highly placed than our Magistrates Courts, which normally deal with less serious matters than our current Supreme Court. The renamed “High” or “Superior” Court will be endowed with the same duties, responsibilities and authority as our present Supreme Court.
We also suggest that the highest court in The Bahamas, presently the Court of Appeal, should be renamed “the Supreme Court of The Bahamas”. As the truly supreme court in our nation, we further suggest that the current president of this highest court should bear the title of chief justice of The Bahamas, thereby recognizing that person as actually the ultimate head, or chief justice, of the judiciary.
The Privy Council
In the context of a revamped Bahamian judiciary, we should consider whether the time has come for The Bahamas to withdraw from the Privy Council as the final court of appeal. This will require a fundamental shift in thinking. We believe that this requires several further considerations.
A primary consideration is that, if we accept that the name “Supreme Court” should replace that of the Court of Appeal, currently the ultimate Court in The Bahamas, are we sufficiently secure and mature as a nation to recognize our newly named Supreme Court as the highest court of the land and dispense with the Privy Council as the court of final appeal?
As we approach the 50th anniversary of our nation’s founding, we should ask ourselves: as a sovereign nation, should we not have sufficient confidence in our ability to make final judicial decisions that impact our lives, institutions and values? If we accept that Bahamians can head the executive and legislative branches of government, as we have since Independence, why should we not also be the final arbiter of our judicial decisions? This is elemental to the concept of sovereignty. It is inconceivable that we would relegate legislative and executive matters to extra jurisdictional authorities. So why should the same not apply to our judiciary?
Bahamians have come to recognize that the Privy Council has an almost sacrosanct status here, so we have tenaciously clung to this institution as the last bastion for the dispensation of justice. Why is this? Could it be that we are not sufficiently confident or mature in our ability to believe that we are able to make such final judicial decisions for ourselves?
There are several reasons that we cling to the Privy Council.
First: It appears that we have accepted that we are incapable of real self-determination in all aspects of national development, in this case, judicial determination.
Second: We have blindly and unquestionably adopted the judicial structures that we inherited from our colonial forebears, without really exploring whether such structures are still relevant or appropriate in a modern Bahamas. Just as we have indigenized our executive and legislative branches, should the same reality not apply to our judiciary?
Third: There is a silent acquiescence and a nationally subliminal acceptance that we do not have the talent, objectivity and jurisprudential professionalism to ultimately decide our judicial matters without further reference to and confirmation by external authorities. There is also a school of thought that we must rely on the Privy Council because it significantly enhances the credibility for the dispensation of justice, especially seen in the international financial community, and that the right of appeal to the Privy Council removes any doubt about the “natives” abusing their “deficient” jurisprudential expertise. In other words, we must use the Privy Council because the international financial community does not have sufficient confidence in our local legal talent pool. We believe that this perception is unfounded and must not be countenanced.
Fourth: In far too many cases, we continue to harbor a deep-seated, “not invented here” prejudice and perspective of the world. We simply do not have sufficient confidence in our fellow countrymen when there are others from beyond our borders who we automatically accept to be more fully imbued to do the things that Bahamians have been just as well – if not better – trained to do and have done for many decades.
Obstacle to progress
There are several obstacles that will prevent us from making progress in this matter. For too long, and in too many instances, decisions related to the appointment of persons to high office are highly politically influenced, which sometimes results in a perception that the process has been corrupted. Whenever decisions are politically motivated, we often end up seeing persons appointed who are not the best suited or optimally qualified for such appointments. When this happens, it further fuels the lack of confidence we have in ourselves and the judicial system.
Presently, justices of the important third branch of our government are appointed exclusively by the prime minister. Given the importance of the role and responsibilities of our judges, there would be greater confidence if this process is less politically charged and exclusively removed from the political directorate. Such decisions should be taken by a more objective, non-partisan body that is devoid of overt political considerations that can impact their choices.
It will be difficult to convince our citizens that we should dispense with the Privy Council until and unless they perceive that the selection of judges is made in a non-partisan, objective, fair basis.
In our third and final part of this series, we will consider whether The Bahamas should replace the Privy Council with the Caribbean Court of Justice as the final court of appeal for The Bahamas in order to ensure a judiciary that is more closely aligned with the values and traditions we treasure.
• Philip C. Galanis is the managing partner of HLB Galanis and Co., Chartered Accountants, Forensic & Litigation Support Services. He served 15 years in Parliament. Please send your comments to email@example.com.