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Justin L. Simon, QC

2016 Annual Leonard Tim Hector Memorial Lecture

Delivered at the Mutipurpose Cultural Centre, Perry Bay, St. John’s, Antigua on Thursday November 24, 2016.

Our Accession to the Caribbean Court of Justice – embracing our independence, and a Caribbean legal masterpiece!

 

Ladies and Gentlemen:

I crave your indulgence to begin this lecture by thanking the Leonard Tim Hector Memorial Committee from the bottom of my heart for its invitation. But, delighted as I am to have been invited to deliver this most topical lecture, I must confess that my initial excitement over the phone call invite from Mr. Lawrence Jardine that Friday morning has been tempered somewhat when I was later informed via e-mail of the thirteen Caribbean personalities who have had the distinct honour of delivering the previous memorial lectures – men and women whose footsteps are, by any measure, too big for my small “borde la mere” feet.

But, I will plod on, buoyed by your presence  and a TV and radio audience eager to understand the dynamics and implications of our proposed CCJ v Privy Council referendum. I therefor humbly ask, much like Marcus Antonius in Shakespeare’s Julius Caesar: Friends, Antiguan and Barbudans, Caribbean countrymen, lend me your ears! I come to speak of our jurisprudential future, not to bury our past.

“Our Accession to the Caribbean Court of Justice – embracing our independence, and a Caribbean legal masterpiece”.

Let me begin with two forceful quotes which should set the tone for tonight’s lecture. Leonard Tim Hector, the man whose vision we honour tonight, a committed regionalist, said this: “But if we do not struggle for a system of Justice, and rely on other people’s systems of Justice as the final arbiter in our affairs, we would ever remain, at best, half-free and half-slave”; a damning prospect, I may add. And, in its report ‘Time for Action’ published in 1993, the West Indian Commission chaired by Sir Shridath Ramphal had this to say: “First of all, we believe that the time is at hand for establishing the Caribbean Court of Appeal – what in an integration context we would prefer to call the CARICOM Supreme Court. . . we are strongly of the view that we cannot, like characters in a Chekhov play, go on sitting around tables forever discussing the pros and cons of action and in the process forever deferring it. . . the case for the CARIOM Supreme Court, with both a general appellate jurisdiction and an original regional one, is now overwhelming – indeed it is fundamental to the process of integration itself”. For how much longer, I make bold to ask, must we defer making the decision to accede fully to the Caribbean Court of Justice?

Our history as Caribbean people has been replete with struggles commencing with the extermination of the indigenous people following the arrival – not discovery – of Christopher “Come-bluff-us” Columbus in 1492, followed by the forced transportation of Africans as slaves, and later the introduction of indentured labour with Indians from the sub-continent. Our legal history is no different, though not as dehumanizing or degrading.

It is now 800 years since the proclamation of Magna Carta in England (which spoke to the right of all men to justice); 350 or so years since its adoption by whites solely for whites in the Caribbean where slaves were legally considered and treated as chattel or property; 183 years since the abolition of slavery, and the passing of a law in the U.K. that members of the Privy Council must possess judicial qualification; 100 years after ‘The Daily Gleaner’ of Jamaica called for the establishment of a regional final court of appeal; 48 years since the establishment of our Eastern Caribbean Supreme Court following the breakup of the ill-fated West Indies Federation; 44 years since the Commonwealth Caribbean Bar Association (OCCBA) recommended the establishment of a Caribbean Court of Appeal as our final appellate court; 35 years since our political independence from Britain; and 30 years since a proposal for the establishment of a Caribbean Court of Appeal as a final appellate  court in place of the Judicial Committee of the Privy Council was formally tabled at a  CARICOM Heads of Government Conference held  in Trinidad and Tobago.

Fast forward to February 14, 2001 when ten Heads of Government, including Antigua and Barbuda’s Sir Lester Bird, at a CARICOM Heads meeting in Barbados signed the Agreement establishing the Caribbean Court of Justice, and declared in the preamble that they were:

“Convinced that the Caribbean Court of Justice . . . will have a determinative role in the further development of Caribbean jurisprudence through the judicial process;  Convinced also of the desirability of entrenching the Court in their national Constitutions;  and Aware that the establishment of the Court is a further step in the deepening of the regional integration process”.

 

Then Attorney General and Minister of Legal Affairs in Antigua and Barbuda, I was present on April 16, 2005 in Port of Spain, Republic of Trinidad and Tobago, at the gala ceremony at which the Caribbean Court of Justice was inaugurated, endowed with dual jurisdictions. In its original jurisdiction, it is an international court with exclusive jurisdiction to interpret and apply our Revised Treaty of Chaguaramas, and to decide disputes arising under it. In its appellate jurisdiction, it is the final court of appeal for States replacing the Privy Council.  Its Vision is expressed thus: “To provide for the Caribbean Community an accessible, fair, efficient, innovative and impartial justice system built on a jurisprudence reflective of our history, values and traditions while maintaining an inspirational, independent institution worthy of emulation by the courts of the region and the trust and confidence of its people”.

 

Where are we in November 2016?  Section 122 of our 1981 Independent Constitution provides for final appeals to “Her Majesty in Council”. The words “Privy Council” or “Judicial Committee of the Privy Council” are not used in that supreme law document. That is because we have adopted and maintained the imperialistic format that as subjects of the Monarch (who remains our Head of State), we appeal to her as the ultimate fountain of justice. I am not kidding! In fact, when handing down its decision the closing words are usually: “Accordingly, the Board will humbly advise Her Majesty that the appeal should be allowed”, or “. . .should be dismissed”, as the case may be.

The Judicial Committee of the Privy Council is not an English court in the sense that although it sits mainly in London (only three times and only in the last seven years has it sat outside England, and at the travel and accommodation cost of the host country), it comprises the Law Lords who prior to 2009 were appointed by the Queen on the advice of the British Prime Minister from the ranks of senior appeal judges in the United Kingdom; now, they are appointed on the recommendation of the U.K. Judicial Appointments Commission. In a 1935 decision [British Coal Corporation v R], the Privy Council explained that what takes place in London is only one small step in a composite procedure which starts and finishes in the courts of the country from which the appeal is brought; and that an appeal to the Privy Council is in fact “an appeal to an Imperial, not a merely British tribunal”.

Most of the former British colonies have abolished appeals to the Privy Council: Canada in 1933 (criminal only), and in 1949 (civil); India in 1947; Ghana in 1960; Guyana in 1980; Malaysia in 1984; Australia in 1986; Gambia in 1997; New Zealand in 2004; and Nigeria, Kenya, Uganda, Tanzania, South Africa, Zimbabwe, and all other independent countries in the African continent have followed suit at some time or the other. Thus, Dr. Lloyd Barnett, O.J., S.C, of the Jamaica Bar recently opined thus: “It is therefore surprising that against [their] historical background, when the former British colonies of the Caribbean emerged from their colonial status they elected to retain the Privy Council as their final appellate court. While it is true that in the last century, the Privy Council in its reformed judicial manifestation has provided high quality service to the Caribbean members of the Commonwealth, it is remarkable that unlike the vast majority of former colonies having less historical justification, we have to a large extent insisted on clinging to its overreaching jurisdiction”.

 

It is a fact that Caribbean governments do not have to and don’t contribute  financially to the cost of maintaining the Privy Council. But, we must bear in mind the old adage that ‘one should not look a gift horse in the mouth’, lest that gift horse closes its mouth on your head, when you least expect. And, as we say in patois in Dominica: ‘Toujou pon douvan avant douvan pon douvanw’ meaning, it’s always better to stay ahead.

On September 21, 2009 the London Financial Times published remarks of Lord Phillips of Worth Matravers, then the newly appointed first President of the recently established Supreme Court of England and Wales, in which he is reported to have said that he was “searching for ways to curb the disproportionate amount of time the Privy Council dedicates to hearing appeals from the Caribbean”. In its own comment on the interview, the Financial Times described the Privy Council as a “creature of Britain’s nineteenth century colonial pomp”. The writers did not stop there. They then described the Supreme Court of the United Kingdom (which reformed the centuries-old existing court structure) as “quintessentially British constitutional fudge, separating the judiciary from Parliament for the first time but leaving intact [the Privy Council] widely seen as a post-imperial anachronism”. Subsequently on September 24, 2009 the BBC, reflecting on the Financial Times’ story, described as a “minor public scandal” the fact that Britain’s top judges are required to spend virtually half of their time hearing overseas appeals largely from the Caribbean on business that is “of no interest to anyone in the United Kingdom”. Have we not got the message?! It is true that the current President, Lord Neuberger of Abbotsbury in a video link earlier this year, has sought to reassure us that the Privy Council is happy to serve us for as long as we wish; but what assurances do we have that his successor will adopt a similar stance? And, does he speak for the British Government who bears the cost of maintaining the Privy Council? A word to the wise, I have been told by our elders, is sufficient.

That we in Antigua and Barbuda have good reason  to celebrate decisions from the Privy Council, cannot be gainsaid or denied. To name a few: Remember the Public Order Act of 1976 which made it an offence for anyone to print or distribute any false statement which is likely to undermine public confidence in the conduct of public affairs? Tim Hector and the Outlet newspaper had to fight his criminal charges right up to the Privy Council, which held the law unconstitutional. In December 1993 the Antigua Workers Union called the workers in four hotels out on strike. The Privy Council in overturning the Court of Appeal held that an appeal from the Industrial Court lies as of right under the Constitution, and re-instated the finding of unfair dismissal against the hotels who had locked out their workers. In 1998, it was the Privy Council who held in the Elloy de Freitas case that any restrictions imposed on the freedom of expression and freedom of assembly by civil servants must be restrictions which are reasonably required for the proper performance of their functions and must additionally be reasonably justifiable in a democratic society. And later that year, the dismissal of Dr. Cuthwin Lake as medical superintendent of Holberton Hospital was held to have constituted discrimination by reason of his political opinions and affiliations which were contrary to those of the then Prime Minister. Then in 1999, the Government’s refusal to grant Observer Publications Ltd a broadcasting Licence was held by the Privy Council to be a hindrance to freedom of expression and freedom to disseminate information. In the recent Half Moon Bay cases, the government’s right was established to compulsorily acquire private land where the owner failed repeatedly to develop the tourism plant previously established in spite of the grant of incentives to the owners; and that the proper method of valuation must be based on material evidence, and not fanciful speculation.

But, a comparative study of the number of appeals from Antigua and Barbuda filed in the Court of Appeal and filed in the Privy Council during the period 2005 – 2014 makes interesting reading. I ask that you bear in mind that your first instance courts are the Magistrates Court, the High Court, and the Industrial Court – all cases begin in one of these three courts. The next step, if a litigant is dissatisfied, is to appeal to the Court of Appeal; then finally to the Privy Council. Between 2005 and 2009: 224 cases were filed in the Court of Appeal compared to 8 in the Privy Council; between 2010 and 2013: 147 cases were filed in the Court of Appeal compared to 8 in the Privy Council.

That stark comparative study suggests one of two possibilities: either that more than 95% of litigants were satisfied with the decisions of the Court of Appeal and did not bother to appeal their loss; or, litigants who lost could not afford the high legal cost of appealing further to the Privy Council in London. Which cap do you think fits? Which cap should we proudly wear? In fact, very very few appeals to the Privy Council deal with ordinary litigants against ordinary litigants; by far, the greater number are fights with government over constitutional rights, and criminal appeals against murder convictions.

The Mission of the Caribbean Court of Justice is to “perform to the highest standards as the supreme judicial organ in the Caribbean Community. In its original jurisdiction it ensures uniform interpretation and application of the Revised Treaty of Chaguaramus, thereby underpinning and advancing the CARICOM Single Market and Economy. As the final court of appeal for member states of the Caribbean Community it fosters the development of an indigenous Caribbean jurisprudence”.

 

The integrity of the CCJ and its insulation from political influence or interference are, in my view, guaranteed by five main characteristics which are contained in the Agreement which, in turn, is to be entrenched in our Constitution by Parliament following a not less than two-thirds vote of all members of the House of Representatives and not less than two-thirds of all the votes validly cast in a referendum. In the words of the former President the Rt Hon Mr. Justice Michael de la Bastide: “There is a good reason therefore, to be optimistic about the future of the CCJ. The establishment of this Court is certainly a landmark in the history of the Caribbean. The Court has the capacity to make an important contribution to the integration movement in the region and in Lord Hoffman’s words to give to the people of the Caribbean ‘the full benefit of what a final Court can do to transform society’.”  Lord Hoffman, incidentally, is a former highly distinguished President of the Privy Council.

The first important characteristic of which I speak, is the qualification criteria required for appointment to hold office as a CCJ Judge, three of whom must have expertise in international law, including international trade law – a necessity for interpreting and enforcing the Treaty of Chaguaramus. An applicant must have been a judge for at least 5 years in a Caribbean, or another Commonwealth or civil law jurisdiction, and must have distinguished himself/herself in that office; or must have been practising or teaching law for at least 15 years in a Caribbean territory or a Commonwealth or civil jurisdiction, and must have distinguished himself in that position. The applicant’s public advocacy, seminal judgments, and published scholastic achievements will be under the microscope. Additionally, the applicant must be of high moral character, high intellectual and analytical ability, sound judgment, integrity, and must have a good understanding of people and society.

Let me make it abundantly clear, to erase existing misunderstandings, that there is no promotion system or automatic selection process from the High Court or the Court of Appeal to the CCJ. Applications must be made and considered on their individual merit.

Second, the appointment and removal process is placed in the hands of an eleven-member Regional Judicial and Legal Services Commission: the CCJ President can only be appointed or removed by a majority vote of three-quarters of the CARICOM Heads, and ONLY from recommendations made by the Commission – no other body or person. The other nine judges are appointed and removed by a majority vote of all the members of the Commission – not just those present and voting.  The removal of any Judge must be referred to an independent Tribunal comprising of three current or former judges in the Commonwealth or a civil law jurisdiction, who will then make the appropriate recommendation.

The composition of the 11-member Regional Judicial and Legal Services Commission brings together persons nominated by legal and quasi-judicial bodies across the Caribbean: the CCJ President who shall be Chairman; two persons jointly nominated by OCCBA and the OECS Bar Association, the CARICOM Secretary General and the OECS Director-General, the Deans of our Faculties of Law and the Council of Legal Education Chairman, and by the Bar or Law Associations of the various States; and the Chairpersons of a Public Service Commission, and a Judicial Service Commission, selected in rotation every three years.

Thirdly, the Judges enjoy security of tenure. Except he/she is removed for inability due to illness, other substantial cause, or misbehaviour, the CCJ President holds office for 7 years or until he/she attains the age of 75 years, whichever is the sooner; while the other Judges sit until they attain the age of 75 years.

I can do no better at this stage than repeat the words of the former President of the Republic of Suriname: “The members of the Conference Heads of Government of the Community have sought to keep faith with the people of the Community. We have listened closely to the anxieties expressed about the independence, integrity and financial sustainability of the Court. We have deliberately removed ourselves and our Governments almost completely from the process involving the appointment of the President and are completely uninvolved in the appointment of the other Judges. This is a historic first for the appointment of Judges at any level, municipal regional or international”.

The fourth main characteristic is the financial provision in force for funding the Court. Remarkably, it is a historic first in national and international circles, and has been lauded in judicial circles the world over. An independently-managed Trust Fund has been established at inception to finance the capital and operating budget of the Court and the Commission. The contribution of each State was established based on their GDP and population census, and paid in full with the assistance of the Caribbean Development Bank into a Fund operated by a 9-member independent Board of Trustees drawn from civic society’s banking, accounting, labour, industry and commerce, insurance and judicial sectors. When and as it becomes necessary, the Fund will be replenished by the States in their already established respective contribution proportions. We have been publicly informed that the original capital amount of US$10M remains untouched, after eleven years of operations by the CCJ, with its operating costs paid solely from income interest generated by the Fund.

Fifthly, there is a requirement that legislation is to be passed by each State/Contracting Party for the purpose of ensuring that any judgment, decree, order, or sentence of the Court shall be enforced by local courts and authorities. A Court without teeth hardly conveys reassurance. Our own WTO experience speaks volumes on this score; our 2002 World Trade Organization monetary judgment against the United States is yet to be honored or satisfied; in the meantime, our once thriving Gaming Industry lies shattered and our economy has been severely and adversely affected notwithstanding our judicial victory even on an appeal by the great United States.

Taking into consideration, all that I have said, I respectfully commend to you the words of the former Prime Minister of Saint Lucia: “The Caribbean Court of Justice is therefore, not a leap into the darkness. It is a leap of enlightenment”. I could not have said it better.

Understandably, there are serious concerns currently being expressed about the state of the local judicial system: the slow pace to trial and judgment; the growing backlog of cases; the need for more judges; the problems with enforcement of judgments; the constant adjournments requested by the lawyers; the waste of litigants’ time as they sit and wait their turn for Chambers hearings; the failure of magistrates to prepare and submit accurate record of proceedings to the Court of Appeal to allow for speedy appeal hearings; the large number of persons in prison because they cannot make bail before delayed trials; the need for more updated electronic and communication technology for use in all our courts; the inefficiency of the police in their investigative and prosecutorial roles; the protracted delays in the Magistrates court due to incomplete or misplaced police files; and, in other States, the lack of proper or modern court building facilities.

But we must not mix grapefruits with oranges, though they both come from the citrus species. Delaying our accession to the CCJ is not going to fix these local problems; in like manner, staying with the Privy Council is of no help as can be clearly seen. But, I wholeheartedly agree and support the notion that Justice must not only appear to be done in some quarters; Justice must be seen to be done throughout the whole judicial system – from the Magistrates Court right up to the CCJ.

And I strongly posit the view that our local problem within the regional Eastern Caribbean Supreme Court process is one which has its roots in finance. When one considers that as at December 31, 2015 six of the nine member States collectively owed the Court EC$21M in respect of their annual budgetary allocations, the concerns of the critics about the current governance and inadequacies of our local courts are fully justified. Antigua and Barbuda alone owed EC$5.5M as at December 31, 2015; and as at October 31, 2016 our arrears are now EC$6.4M.

I make bold to recommend, as I have repeatedly done in the past, that the OECS governments need to establish (like the CCJ), a Trust Fund with the assistance of the Caribbean Development Bank or the Eastern Caribbean Central Bank, for the full financial operations of our regional Supreme Court. Only then will we see the necessary changes in our local judicial system. Budgetary allocations will never cut it; the courts are not a political priority where our governments are concerned. Let us together call for that change. Our Chief Justice can only place the statistics, and speak to shortcomings in her annual report; she cannot lobby the various government Ministers. And recently, Her Ladyship has sent out a very clear message to those who attempt to influence her judges: cut out those attempts, or you will be named and shamed.

Ladies and Gentlemen, time unfortunately does not permit me to speak to the jurisprudence developed by the CCJ during its eleven years of sittings both in its original jurisdiction (to which all twelve States have acceded), and in its appellate jurisdiction, to which only Barbados, Belize, Guyana, and, most recently, the Commonwealth of Dominica have joined. That, I would love to do on some other occasion. But, suffice it to say, that the quality of the CCJ judgments over that initial period have been brilliant and outstanding, and proportionately more than any other international judicial body. I am yet to hear or read of any adverse or damning criticism of its judgments, or its judges; and their adjudications have been far reaching and on diverse societal issues like, access to justice; protection of human rights; construction of our Constitutions; freedom of movement within CARICOM; commercial law; and property law.

Methinks I have spoken long enough, and tested your patience sufficiently. My final word is to the naysayers among us; to those who cry and loudly proclaim: “No, not yet!”. I say to you in the immortal words of the late legendary Robert Nester Marley: “Emancipate your minds from mental slavery; none but ourselves can free our mind”. And, I have absolutely no doubt that the late Leonard Tim Hector, in whose singular honour this lecture has been delivered, would join that battle cry and lead the affirmative action troops from the front. I humbly rest my case.

And, I thank you kindly for your attention!

From the very bottom of my heart.

Justin L. Simon, QC

November 20, 2016