The region yearns for its own appellate court but it also yearns for justice!

by Dame Bernice V Lake QC 23.OCT.09

It is regrettable that Caribbean regional lawyers have fallen into error in construing the remarks of Lord Nicholas Phillips, the President of the New Supreme Court of the UK, as words which lend support to the CCJ. That construction is too positive an extrapolation from remarks which are so clearly aimed at cutting down work for the UK court itself.{{more}}

It is regrettable also that many in the region have allowed those remarks and the recent designation of the right of appeal to the Privy Council as a privilege of de bono access to UK judicial time to send them into a tizzy without analyzing some of the implications and impediments which have halted the implementation of the CCJ.

The stance of the Minister of Justice must not go un-noticed. The Ministry of Justice declined to respond to Lord Phillips’ comments, saying that how he ran the Supreme Court was a matter for him.

While Lord Phillips is free to express his desire for more judicial time for domestic matters and, according to the Ministry of Justice, is free to run the newly structured court as he deems fit, it is not within Lord Phillips’ competence to alter and affect the constitutional arrangements governing the right of access of the citizen to the Privy Council and the relationship between the citizen and Her Majesty as head of state.

That right of access was carefully crafted and deeply entrenched in the Constitutions governing the independent states of the Caribbean, some thirty years ago. Given the recent vintage of those instruments, the implications to the British taxpayers on the assumption of the obligation to provide those judicial services had to be within the contemplation of the British government and voluntarily assumed.

To give effect to Lord Phillips’ desire involves a re-working of the existing constitutional arrangements whereby the citizen is vested with a constitutional right of access to justice by way appeal to Her Majesty as Head of State. In most of the instruments, it has been clearly laid down that this constitutional right can only be altered with the express concurrence of the citizenry through a referendum. The possibility of Lord Phillips’ walking away from this constitutional obligation compels the contemplation of Britain unilaterally tearing up the constitutions of these nation states.

Most people in the region yearn for the day when they can boast of having their own final appellate court. However, they yearn more for justice. Lord Phillips is not the first Law Lord to nudge the Caribbean to move forward with their own final court. Indeed, Lord Wolfe had done so almost a decade ago. But when he delivered his seminal lecture on Access to Justice in Barbados , he had to step back from the stance taken.

Prime Minister, Dr Ralph Gonsalves, of St Vincent and the Grenadines on his assumption of office acknowledged the desirability of having such a court, but took the position that it could only come about when there was adequate reform and restructuring within our domestic legal systems which would guarantee an ethos out of which justice could be seen as a market product with which the people are satisfied. No reforms have been effected.

Sir Probyn Innis sees Lord Phillips’ remarks as a wake up call to the region to get on with the CCJ but when asked about his daughter’s case which ended up with the Privy Council, he promptly responded that in some cases the Privy Council was the only place where justice could be had. Sir Probyn contended that it was not a matter of erudition which prevented the region from accepting the CCJ. It was a feeling of not being satisfied with their own institutions.

What Sir Probyn is speaking about is a matter of confidence in the market product of justice. That lack of confidence is not based on a ‘feeling’. It is based on statistics. When it is appreciated that nearly 90 percent of the cases going up from the Court of appeal to the Privy Council are reversed, it is a matter of numbers, not feeling. When our Court of Appeal fails to appreciate the distinction between the principles governing the Common Law tort of Wrongful Dismissal and the Statutory tort of Unfair Dismissal, it is not a matter of a feeling; it is another case which drops in the deficit slot which denudes confidence. When the Court of Appeal could adjudge that a finding of a two foot public right of way gives rise to Government’s entitlement to another 30 feet of the land without paying compensation, it is not a matter of feeling; it is a realization that our higher court does not come to grips with the citizen’s constitutional right to the protection of his property guaranteed by the constitution.

Effect and secure a judicial ethos

What the region needs is not the words of Lord Phillips, not a call to move on with the CCJ; it needs a call to find Daniels who can disengage from their propinquity with Governments, and take the courts out of the syndrome of being another agent of the executive arm of government.

If the UK wishes to get out of its obligations, not to the leaders of the region but to the citizens of the respective states, it must combine with the leaders of the region to effect and secure a judicial ethos in which the citizens are so confident of the quality of justice which comes out of the system that they would readily embrace and give sanction to the CCJ.

Until that is done no amount of talking in denigrating terms can compel a people to give up the guaranteed right of access to the Privy Council. If that right be an impediment to the UK court then they will have to fashion a structure around it until the right of access can be dismantled. They cannot with honour unilaterally declare abandonment of their constitutional obligations.

The Caribbean governments who are anxious to implement the appellate jurisdiction of the CCJ cannot use these remarks of Lord Phillips as a reason to press on regardless with the CCJ’s implementation. What they need to do is to treat these remarks as a critical opportunity to commit themselves to the improvement of the justice product in its entirety.

Dame Bernice V Lake, a Queen’s Counsel throughout the OECS Jurisdiction, is founding Senior Partner in the law firm Lake & Kentish of Antigua and Barbuda, as well as Anguilla.