Consider This | The Privy Council, pt. 3
“[The CCJ] in both its jurisdictions represents the essence of our independence and sovereignty and is essential to the progress of the integration movement.
“It is an institution that has proven its worth and I look forward to the day when all our member states accede to both its jurisdictions.”
— Irwin La Rocque
In part 1 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 also observed how 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.
In part 2 of this series, we discussed the idea of revamping our judicial system to make it more relevant to today’s realities, suggesting that our Supreme Court should be renamed to remove the impression that this court is the highest court in the nation. We also suggested 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.
In the context of a revamped Bahamian judiciary, we questioned whether the time has come for The Bahamas to withdraw from the Privy Council as the final court of appeal. Therefore, this week, we would like to Consider this… if we decide to dispense with the Privy Council, with what should it be replaced?
The Caribbean Court of Justice
The Caribbean Court of Justice (CCJ) is the Caribbean regional judicial tribunal and was established on February 14, 2001 when Antigua & Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St. Kitts & Nevis, St. Lucia, Suriname, and Trinidad & Tobago signed an agreement doing so. Dominica and St. Vincent & The Grenadines signed the agreement in 2003, bringing the total number of signatories to 12. The CCJ came into force on July 23, 2003 and was inaugurated on April 16, 2005. The Bahamas, though a full member of CARICOM, is not a signatory.
The CCJ has two jurisdictions: an original and an appellate jurisdiction. In its original jurisdiction, it interprets and applies the Revised Treaty of Chaguaramas which established the Caribbean Community in 1973 and is an international court with compulsory and exclusive jurisdiction in interpreting the Treaty of Chaguaramas. In its Appellate jurisdiction, it hears appeals in both civil and criminal matters from those member states which have ceased to allow appeals to the JCPC [Judicial Committee of the Privy Council], establishing it as the highest municipal court in the region. The Seat of the Court is situated in Port of Spain, Trinidad & Tobago.
Barbados and Guyana acceded to the CCJ’s appellate jurisdiction in 2005, and on June 1, 2010, Belize also acceded to the CCJ’s appellate jurisdiction. Dominica acceded to the CCJ in its appellate jurisdiction on March 6, 2015. Therefore, the Caribbean countries that have replaced the British Privy Council and recognize the CCJ as the final court of appeal are Barbados, Belize, Dominica, and Guyana.
Further to the perceived need for an indigenous court as a tribunal of last resort in criminal and civil matters in the Caribbean, other considerations heavily favored the creation of the judicial arm of CARICOM.
CCJ vs. the Privy Council
The controversy encouraging the establishment of the CCJ included two major events that made the Privy Council unpopular in the English-speaking Caribbean.
First, the refusal of the Privy Council to allow sentences of capital punishment for persons convicted of murder (who had spent more than five years pursuing their various appeals) to be carried out in Caribbean states, even where a majority of the people in the relevant jurisdictions supported the death penalty. In the case of Pratt and Morgan vs. the Attorney General of Jamaica, the Privy Council, in its 1993 ruling, held that persons imprisoned on death row for more than five years should have their sentences commuted to life imprisonment.
The second issue was a case involving the government of Antigua and Barbuda, where the Privy Council handed out a radio license to a company on behalf of the above-mentioned government without its approval or consent.
In yet another example of the Privy Council’s kind of Caribbean judgement, in February 2005, the Privy Council declared that the CCJ-related companion bills passed by the Jamaican Parliament in 2004 were unconstitutional and, therefore, void. The bills would have established the CCJ as the final court of appeal in Jamaica.
The Privy Council sided with the appellants, ruling that to establish the CCJ as the country’s final appellate court, without it being entrenched in the constitution, would undermine the protection given to the Jamaican people by the Jamaican constitution. The court concluded that the procedure appropriate for an amendment of an entrenched provision—a referendum—should have been followed.
The British-based court has been perceived as having too much power in the Caribbean region where several politicians have also lamented that the Caribbean nations are the only remaining region of the old British Empire to still rely on the Privy Council for appeals.
The CCJ and The Bahamas
The essential question that must be answered is whether The Bahamas should dispense with the Judicial Committee of the Privy Council in favor of the CCJ. There are several compelling reasons for electing this option.
First, given the relative youth of the Bahamian judiciary, there is a compelling argument to retain an independent body of justices to adjudicate legal matters originating here. This is particularly compelling given how our Supreme Court justices are presently appointed and the inclination of partisan political considerations to infiltrate the selection of Bahamian Supreme Court and Court of Appeal justices. This is demonstrated by our propensity to appoint Supreme Court justices who have recently served in the executive branch of government, most notably recently appointed and currently serving attorneys general to the bench. This smacks of political pandering by such persons who might be perceived to be a politician once removed.
Secondly, in light of the aforementioned relative youth and perceived inadequate jurisprudential depth of many members of our judiciary, it is imperative that persons appointed to the court of ultimate appeal possess the experience that can only come from many years of deep and varied jurisprudential experience in order to inspire the public’s confidence in their rulings.
Third, as a member of CARICOM, the CCJ would appear, prima facie, to be a preferred alternative because the CCJ is comprised of Caribbean justices who have more in common with Caribbean citizens than those who adjudicate over us from Great Britain. It stands to reason, and should provide greater comfort to us, that justices of the CCJ inherently have a deeper understanding and appreciation of Caribbean peoples, culture, norms, values, and home-grown realities than do those who are situated much further away.
Fourth, even if we choose the CCJ option, we believe that this option should be viewed as a temporary, bridging mechanism to allow us time to develop a deeper, more mature bench so that we can ultimately dispense with both the Privy Council and the CCJ.
The long-term objective should be to ultimately develop an indigenous judicature that will, in the fullness of time, morph into a wholly Bahamian judiciary. Just as we would look askance at our executive and legislative branches if they were not wholly Bahamian (as they have been since independence), we should ultimately strive to ensure that our judiciary, at all levels, including that of the tribunal of final appeal, is occupied by wholly indigenous personnel.
In the final analysis, if we are truly committed to building an independent Bahamas whose ultimate goal is to Bahamianize our fundamental institutions of governance and fully realize our sovereignty, we must honestly ask ourselves if we really have any choice but to ensure that qualified Bahamians populate all aspects of governance.
Our ultimate goal must be to have an indigenous final court of appeal for The Bahamas to ensure a judiciary that is more closely aligned with the values and traditions we treasure so that the Bahamian rule of law is truly that: Bahamian.
• 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 firstname.lastname@example.org.