Privy Council abandons contentious Rule 23 on appeal merits

The content originally appeared on: Trinidad and Tobago Newsday

Attorney Kiel Taklalsingh. –

The Judicial Committee of the Privy Council (JCPC), has withdrawn its review of the merits-of-appeal rule that local attorneys had argued would have violated the constitutional right of citizens to have the country’s final appellate court hear their cases.

The United Kingdom-based court recently sought views on the proposed Rule 23. In a statement on its website on May 23, the Privy Council gave an update on the rules consultation. It announced the suspension of practice directions 4,7,1 pending further consultation on a suitable case management arrangement.

The Privy Council began consulting on the new rules in April.

Local attorneys said the proposed Rule 23 would have significantly changed the appeals procedure as it introduced a “merits review” of cases.

The proposed rule would have affected a significant number of appeals the London court decided and would have led to the JCPC dismissing appeals without a hearing.

Appeals to the Privy Council are either of right as permitted by the Constitution, or by leave of the Court of Appeal.

In a public appeal for views on the proposed rule, attorney Kiel Taklalsingh, who participated in the consultation process, said while he appreciated the need for a filtering mechanism, it would affect or lead to a watering down of the constitutional appeal as of right provision.

He suggested the court make clear what the threshold test would be and have it published so that the general public, not only lawyers, would understand what would be required to have their appeal heard.

In an interview on May 26, Taklalsingh told Newsday, “I think the Privy Council has adopted a very admirable approach in the way it consulted and listened to the views of regional practitioners. I commend all of my fellow attorneys for participating in the process.”

Attorney Farai Hove Masaisai also provided a 17-page submission during the consultation process which ended on May 17. He provided arguments in support of and against the proposed changes.

Although he admitted the proposed change would lead to efficiency and modernisation, he said it could also undermine constitutional safeguards to appellants and hinder justice and fairness.

He said an appeal as of right, traditionally entitled an appellant to an oral hearing.

“The new plan goes further by potentially denying this right even in significant cases.

“The lack of oral hearings raises concerns about transparency and accountability of the Privy Council decision.

“Decisions made solely on papers may lack the depth and scrutiny that oral arguments provide. The dismissal of appeals without oral submissions could erode public trust in the judicial process and in the court itself.”

He called for a broader debate on Rule 23.

Richard Clayton, KC, who has represented Trinidad and Tobago nationals at the Privy Council said in a blog post, the change of mind by the Privy Council was not altogether surprising.

He previously argued that the proposed Rule 23 was wrong in principle.

“What is particularly impressive, however, is how speedily the Privy Council has responded to the grave concerns voiced during the consultation process about the proposed Rule 23 by abandoning the idea entirely.

“Numerous arguments were raised about the detrimental impact of Rule 23.”

Masaisai pointed to several local constitutional cases determined by the Privy Council, saying if Rule 23 was effected, “it could significantly impact cases where fundamental rights are at stake.”

Attorney Farai Hove Masaisai. –

“The Privy Council may argue that the proposed rule aims to enhance efficiency and weed out unmeritorious matters, but it can also be argued that Rule 23 may collide with the constitutional right of access to the final court for citizens of Trinidad and Tobago.”

Taklalsingh was supportive of the move to have a local judge on the Privy Council’s panel, saying it was a progressive step.

“It demonstrates a willingness of the institution to evolve and adapt.”

The UK Government’s approval of the move to include foreign judges was announced by Lord Robert Reed, president of the UK Supreme Court and the Judicial Committee of the Privy Council, on May 8.

Reed said the court and the UK’s Ministry of Justice are working on detailed arrangements to facilitate the move.

“Reed said: “Having the benefit of the opinion of a judge with direct experience of local conditions can only enhance the quality of the Privy Council’s decision-making.”

“We are immensely proud of the work we do within the JCPC and we are dedicated to considering how we can best serve the countries and territories we represent.”