By Claude Denbow From Trinidad Express newspapers

Part I

Over the past four months there has been a fairly intense debate, both here and in the wider Caribbean, on whether the Caribbean Court of Justice (CCJ) should replace the Privy Council (“PC”) as the apex Court of Appeal for Trinidad and Tobago and countries of the Caribbean.
Entry into the debate has not occurred before because of the desire not to be labelled as being pro or against any particular view. In these small islands which we inhabit individuals are too often labelled as having some ulterior motive for expressing an opinion.
Accordingly, one is entering the debate not for the purpose of expressing personal views for or against the CCJ as the final appellate court for the Caribbean, but instead to articulate the arguments for and against which of the two courts should be the final appellate court for the Commonwealth Caribbean.
The matters to be set out hereunder are informed not merely from the recent views and statements made in the public domain, but also from conversations over the past decade with attorneys-at-law and members of the public who have an interest in and expressed views on the subject. In addition, one has been afforded the opportunity to appear both before the PC and the CCJ, and in the case of the latter to have led the legal team which initiated and brought into operation the original jurisdiction of the court in litigation in 2008 (appearing on at least 20 occasions before that court).
Having regard to the foregoing, it is not unreasonable to expect that some value could be added to the debate by what is set out hereunder.
The arguments for and against the two courts are set out hereunder.

Arguments for the CCJ

Completing the cycle of
Independence
The argument which is made here is that the abolition of appeals to the PC and the replacement of that body by the CCJ will complete the cycle of independence of the countries of the Commonwealth Caribbean. The point is made with great force that having attained independence between 30 to 52 years in the case of most Commonwealth Caribbean countries, the time has now long passed when we should have shed ourselves of our colonial past and the reliance upon judges based in London to decide matters coming before our Courts.
The foregoing point has been expressed by a retired CCJ judge, Duke Pollard in his book entitled The Caribbean Court of Justice (Closing the Circle of Independence) where at pages 126 and 127 he states:
“The genesis of the jurisdiction of the Judicial Committee of the Privy Council is traceable to the inordinate degree of arrogance associated with the disposition of royal power in the middle ages.
…the Judicial Committee of the Privy Council was perceived as an indispensable attribute of empire and the judicial symbol of colonialism.”
It is to be expected that Caribbean people having attained political and governmental independence to move to the final stage of having their legal disputes adjudicated within the region by persons who are from the region and are aware of its peculiarities. The only caution that one can add in this regard is that the move to complete the circle of independence should not be influenced by any improper purpose which could undermine the trust and confidence which people will repose in the final appellate court.
In this context the historical reality and facts of what happened in the case of Guyana should be noted. It will be recalled that Guyana was the first country to abolish the PC in July 1971. It is my understanding that that event is often represented in lectures in the law faculty in Barbados as the first major development in completing the circle of independence in the judicial process in the Caribbean. However, quite contrary to that assertion, it is within my personal knowledge that the legislation in Guyana was passed, not for the apparent purpose, but in order to benefit a supporter of the party in Government at that particular time.

Greater Access to Justice
The argument here is that the replacement of the PC by the CCJ as the final appellate court will provide citizens of the Commonwealth Caribbean countries with much greater access to justice. This means that they will be able to take their matters to the final Court of Appeal if they so wish at a much reduced cost. The argument is that appeals to the PC are extremely expensive and that factor operates as a deterrent to prosecuting an appeal before that body. If the appeals were to be prosecuted in Port of Spain at the headquarters of the CCJ, then it is more than likely that many more persons who may be aggrieved by Court of Appeal decisions in the Caribbean would be in a financial position to approach the CCJ.

Intellectual capacity of the CCJ Judges and Conduct of Hearings
It can be stated quite emphatically that there is no question that the intellectual capacity of the Judges in the CCJ compares very favourably with Judges in any jurisdiction in the world.
The CCJ conducts its proceedings with the dignity and courtesy which is befitting a final Appellate Court. There is no manifestation of apparent bias, hostility or badgering of counsel by members of the Court. Such level of decorum would obviously cause attending clients to develop a level of trust and confidence about the impartiality of the proceedings. From personal experience and those of a number of my colleagues at both the senior and junior bar, some of the Judges in the local Courts would do well to emulate the conduct of the CCJ.
For more on this story go to: http://www.trinidadexpress.com/commentaries/Privy-Council-CCJ-debate–a-different-analysis–301773611.html