Government wants CCJ to replace Privy Council but Mark says not yet

The content originally appeared on: Trinidad and Tobago Newsday

Wade Mark

THE Government supported Independent Senator Anthony Vieira’s motion for the Caribbean Court of Justice (CCJ) to replace the Privy Council (PC) as Trinidad and Tobago’s highest court but the Opposition said the time was not yet right, in the Senate on Wednesday.

Attorney General Reginald Armour praised Vieira’s motion to alter TT’s Constitution to adopt the CCJ, but Opposition Senator Wade Mark warned of an alleged threat to democracy and the independence of TT’s lowers courts. Mark echoed a claim by former prime minister, the late Patrick Manning, when in opposition in 1987, that TT was not yet ready for that change.

After five speakers, the debate was adjourned.

Vieira asked if the Privy Council could relate to Caribbean values and be accessed by Caribbean people. He quoted a commentator, quipping, “It is only the wealthy and the wicked who go to the Privy Council.” Vieira advocated the CCJ as a court which would reflect and shape local values and he stoutly defended its competence and integrity.

Vieira’s motion said TT was now “bound under treaty to refer its appeals” to the CCJ, set up by Caricom States in 2001. It said Caribbean legal matters were “far removed and foreign to the society, culture and habits” of the UK-based Privy Council, saying this sentiment was echoed by some British jurists.

The motion said the CCJ would improve “affordability, relevance and increased access to justice.”

He said most Commonwealth and some Caricom countries had left the PC, as it was politically unacceptable for an independent nation’s constitution to entrench a foreign tribunal as the final appellate court. It was seconded by Independent Senator Hazel Thompson Ahye.

Saying it was time for TT to break with its colonial past, Vieira said the CCJ would be a court of Caribbean people for Caribbean people.

He said under separation of powers, laws made by Parliament were interpreted and even struck down as unconstitutional by judges, whom he said should understand the societies they work in, and be sensitive to social and political values. Vieira asked “whether it is appropriate for judges who are far removed from our society to serve as final arbiters, without any understanding of our cultural and behavioural norms?” Quoting Caribbean jurist the late Prof Simeon Mc Intosh, Vieira said court rulings help define a people’s identity.

“The supreme court of a nation, as the ultimate interpreter of the Constitution, is a defining agent of that people’s collective identity. For us that institution is the British Privy Council.

“If we are to become our own authors, we are obliged to make the words of our Constitution our own.”

He said CCJ former president Michael de la Bastide had once said judges must have an intimate knowledge of their society.

Vieira said Privy Council judge Lord Hoffmann had in 2003 told a Law Association (LATT) function of his own amazement at having delivered nine years of judgements in TT which has its own cultural and national values, without hitherto ever having ever set foot in TT.

Advocating for the CCJ, Vieira said Caribbean judges have served on the International Criminal Court, Conference on Yugoslavia Arbitration Commission and International Tribunal for the Law of the Sea. Denying the CCJ would be a hanging court, he said the CCJ pre-dated the Privy Council’s “Pratt and Morgan” ruling which bans executions beyond five years after initial conviction.

He added that even if hanging was deemed cruel and unusual punishment, it was nonetheless within TT’s Constitution.

Lamenting a “staggering cost” to go to the Privy Council, he said the CCJ was “closer and cheaper” and offered the highest calibre of judges.

AG Armour said Opposition Leader Kamla Persad-Bissessar had once voiced her support for adopting the CCJ, and he could think of no reason she would not support it now. He said Hoffmann once said the PC’s remoteness from the Caribbean was a handicap. Armour said he had been humbled by the brilliance of CCJ rulings. He recalled that often the Privy Council sends back appeals for lower courts to rule on, after the cost of litigants going to London. Armour said as a Caribbean person he was pained by TT’s lack of self-confidence to adopt the CCJ.

Mark said he was a patriot but had concerns over the CCJ. “We have no confidence in the People’s National Movement Government.”

“This is no simply about the final court. This is about democracy, and if you get it wrong you could end up in an autocracy, you could end up facing tyranny.”

He said Vieira’s motion was flawed, and fraught with dangers to democracy.

Mark said TT’s High Court and Appeal Court have more security of tenure than those at the CCJ.

“How can the people of the Caribbean have confidence in politicians having the right to remove the president of the CCJ?” He said political interference into the CCJ was enshrined in an agreement. By contrast, the Privy Council had struck down as unconstitutional three bills passed in Jamaica by the PJ Patterson Government.

Was the CCJ at present, illegal and unconstitutional, he asked.

“I am a nationalist. I am a patriot. But I do not trust the system.” He said in 1987 Manning as Opposition Leader had told then prime minister ANR Robinson did not think the time was right for the CCJ. Mark urged the Government to first hold a national referendum, and only consider the CCJ if approved by 75 per cent of the population.