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By Leon Chaku Symister |
The people of the region have the opportunity to engage in sober, open and constructive debate regarding the establishment of one of the most pivotal institutions in the history of the Caribbean. Both government and opposition parties in the region must encourage dialogue among the people. The voices of those who oppose and those who support the Court must be heard equally on the public airwaves. Discussions must be open, objective and free of half truths, deceptions, double talk, misrepresentations and naked lies. There must be a commitment to keep the debate free from the local politics.
It must be borne in mind that the birth pains of the Court will de difficult and severe. Nonetheless, the goal must be to create an institution that is compassionate, fair, impartial, independent, efficient. We must establish a Court which will earn and maintain the confidence of the people it serves. To this end, the people must be informed not only of the need to establish the Court but also its structure and the mechanism that will be put in place to ensure those objectives that have been outlined. Any Court of Final Appeal must be built on justice, fairness, efficiency and independence. It must be removed from the control and influences of the rich, the powerful and those who hold state power.
The Agreement
Signatories to the agreement have accepted that the Court should be established and that necessary steps will be taken towards that end.
All of the former colonies of Britain in the region, except the Republic of Guyana, have retained the Privy Council, by constitutional provision, as their final Court of Appeal. Therefore, they must amend their Constitutions to provide for the CCJ in place of the Privy Council.
Additionally, States are required to appropriate funds to establish the Court so it will have an initial operating budget for five years. It is the obligation of the leaders of the states to enlighten their people about the Court. Neither blind support for the Court nor stubborn opposition will contribute to the much needed debate. Zealous advocacy must be tempered with passionate reasoning on both sides of the debate.
The Privy Council
The Privy Council is one of the oldest arms of the British government and goes back to the earliest days of the Monarchy when its members were appointed by the King or Queen to advise on the matters of state.
As Britain, through its Constitution, changed into a Constitutional Monarchy where the sovereign acts on the advice of Ministers, the Privy Council also changed.
Today, its day to day business is carried out by those Ministers who are Privy Counselors, namely, Cabinet Ministers and a number of junior Ministers. Most of the work of the Privy Council relates to charities and companies which are incorporated by Royal Charter.
The Judicial Committee
One of the chief functions of the Privy Council, acting through its Judicial Committee, is being the final Court of Appeal for a number of Commonwealth countries who have chosen to retain the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee.
The members of the Judicial Committee are the Lord Chancellor and former Lord Chancellors, and other Privy Counselors holding or having held high judicial office who have not attained the age of seventy five years. Privy Counselors who are holders or former holders of high judicial office in certain Commonwealth countries are also eligible to serve on the Judicial Committee. There has never been a Caribbean national on the Privy Council.
The Caricom independent states that have retained the Privy Council as their Court of Last Resort are Antigua and Barbuda, Bahamas, Barbados, Belize, Grenada, Jamaica, St. Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines. Appeals from these states are known as Appeals to Her Majesty in Council.
An appeal to Her Majesty in Council happens by leave of the local Court of Appeal - "as of right" from final judgments in civil disputes, where the value of the dispute is more than a stated amount and by special leave of Her Majesty in Council - usually in criminal cases, but sometimes in a civil case where the appellant has failed to comply with the rules regarding leave by the local Court of Appeal.
The Republic of Trinidad and Tobago and the Commonwealth of Dominica also retained the Privy Council as their Court of Last Resort. However, appeals from these two states rather than being appeals to Her Majesty in Council are to the Judicial Committee of the Privy Council.
There are provisions for the Republic of Trinidad and Tobago and the Commonwealth of Dominica governing the grant of leave by local courts similar to the appeals to Her Majesty in Council. Additionally, the Judicial Committee may grant special leave to appeal. Orders from the Judicial Committee are enforceable as orders of the Court of Appeal of the particular state concerned.
Along with its domestic jurisdiction, the Privy Council also exercises jurisdiction over the United Kingdom Overseas Territories, inter alia, Anguilla, Bermuda, the British Virgin Islands, Cayman Islands, Montserrat and the Turks and Caicos Islands.
The English Privy Council has been exercising jurisdiction over the peoples of the Caribbean since 1625 when the English settler, Thomas Warner, was granted a Royal Commission from King Charles I, for the islands of St. Christopher, Nevis, Barbados and Montserrat.
The Caribbean Court of Justice is scheduled to open in 2003. The people of the Caribbean are faced with the monumental question. Do they want the English Privy Council after three hundred seventy- eight (378) years being distant from their culture, unmindful of their aspirations, foreign to their hopes, heedless to their quest for independence and misunderstanding their values, to continue to make what in fact is the law of the region?
On the other hand, must we examine the role that the Privy Council has played in this region's jurisprudence for almost four hundred years and take the position "If it's not broke, don't fix it."?
From Antigua & Barbuda, Mr. Symister is an Attorney, an Adjunct Professor of Political Science at City University of New York, [CUNY] a published poet, an author and playwright.