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Dorbrene-O’Marde - Chairman of the Antigua and Barbuda Reparations Commission

The Reparations Commission makes a case for the move to the CCJ

Chairman of the Reparations Commission Dorbrene O’Marde said it is “insulting” that the Judicial Committee of the Privy Council, which has been the court of last resort for most Caribbean nations for decades, is only now considering implementing measures to make access to just less costly for Caribbean litigants.

O’Marde made the statement on OBSERVER Radio (Antigua) on Monday in response to the statement by Lord David Neuberger, President of the Council, who in a recent video presentation said the court is moving towards “piloting a video link facility so that hearings can take place over the Internet and at a time convenient to the local jurisdiction.”

Lord Neuberger further said, “we are also very happy to consider travelling to sit in any JCPC jurisdiction if invited to do so by the relevant government and where various expenses can be covered.”

O’Marde noted that it is interesting that the offer has only been made when Antigua & Barbuda, another of the few remaining countries that subscribe to the Council, is preparing to hold a referendum to move away from the Council to the Caribbean Court of Justice (CCJ).

“They’ve (The Council) been in control of this for over 180 years and they are now, only now, getting ready to become itinerant. So the horrible costs we pay, we pay the airlines to get there, pay the lawyers to represent us, their hotels, pay all these amazing costs and now after 183 years they are only now ready to come to the Caribbean and hear these cases? There’s something rather insulting about that,” he said.

He added that while the Council has been very slow to respond to the needs of the Commonwealth Caribbean nations, the Caribbean region has made great leaps to ensure justice is readily available to all.

“We have already established a court here (the CCJ) that is itinerant; that is staffed by the highest level of legal minds that we can find; that is totally independent from politicians and as we can see in the (Shanique) Myrie case, has a better understanding of civil rights and human rights issues in the Caribbean and is able to rule on them accordingly,” he said.

O’Marde noted that the argument that the jurists on the CCJ are likely to be swayed by politicians or give bias decisions because of their intimate knowledge of certain matters, is without merit.

“I think that type of consideration we must throw out of the window and have faith in an organisation that our leaders took over 10 years to put together, facing all of these of arguments and having successfully designed a court that stands on its own. As a matter of fact, the design of the court is as such, that there is no other court in the world that is so designed…it is bulletproof,” he stressed.

He said the politicians have no hand in the appointment of judges and the governments are not responsible for paying their salaries.

O’Marde reiterated an earlier point made by President of the CCJ Sir Dennis Byron, that the court is financed into perpetuity under a US$100 million arrangement where the money was secured in advance.

“So we must listen to the Law Lords? They are ready now? Now they are turning up? And we must be awed by that? We must believe them? Why is it we don’t ask ourselves what they are looking for and what is this sudden change of mind because over the last couple of years, two of the speakers on this matter have warned the Caribbean of being kicked out of the Privy Council,” he said.

In 2009, the then President of the Privy Council Lord Nicholas Phillips lamented that the UK Law Lords were spending a “disproportionate” amount of time on cases from former colonies, mostly in the Caribbean.

He had also questioned whether some of the cases before the Council really needed a panel of five of Britain’s most senior judges.

In an interview in the UK’s Financial Times newspaper, he stated that “in an ideal world” Commonwealth countries – including those in the Caribbean – would stop using the Privy Council and set up their own final courts of appeal instead.

He said that in the interim, he was looking to take some of the pressure off the Supreme Court by drafting in Court of Appeal judges to help out.

The Financial Times describes the Privy Council, created in the 1830s – when slavery was abolished – “as a creature of Britain’s 19th century colonial pomp”.

O’Marde said it is time for all other Caricom states to move away from the Privy Council in another bold step towards achieving independence. As he noted the ever-changing views of successive presidents of the Council, O’Marde posited what will happen when Lord Neuberger is replaced by another head judge who does not support his position but leans to the stance of some of his predecessors.

“We have a viable alternative that is accessible to us and that doesn’t force us to sell our house…” he said, noting that in the last decade, only nine cases from Antigua & Barbuda were taken to the Privy Council.

Thus far only four Caricom countries have signed on to the CCJ in its appellate jurisdiction, but all others have accepted the court in its original jurisdiction (civil matters and the interpretation of the Treaty of Chaguaramus.)