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Privy Council, last vestige of colonialism

From Guardian tt

IMAGE: Justin Sibion Photo by:Allan Ganpat
Every August 31, I pause to reflect on how my forefathers and foremothers fought for our nation’s independence. Black Stalin could not capture it in better words with his long time calypso, Nothing comes Easy, when he sang about how many petitions we had to send to the Queen in England just to be independent in our own land. Yet sometimes I wonder, what does it mean to be independent? Once I answer this I can move on to the second question, are we truly independent?

To put into simple language, to be independent is the ability for a nation to manage its own day-to-day affairs and to make its own decisions without any external interference. In this sense we are somewhat independent. Every five years we go to the polls to elect our MPs and a Government that make decisions on behalf of the people who elected them. We have a Parliament which makes laws for the peace, order and good governance of the nation.

Every September a national budget is publicly read in the Parliament by the Minister of Finance and then subsequently debated. We also have a Republican Constitution which was framed by the people for the people. Despite having all this, what about the Caribbean Court of Justice?

Apart from Guyana, Barbados, Dominica and Belize, the rest of the members of the Caribbean Community still retain the London-based Privy Council as their final Court of Appeal in relation to criminal and civil appeals. It has been argued, long before this article was written, that the retention of the Privy Council is the last vestige of colonialism in these modern times. It strikes at heart of the ability of our people, our judges and our nation, to think and act for ourselves. This, I may add, is also a critical ingredient of being independent.

The call to abolish all appeals to the Privy Council is not a new one. In fact the first recorded mention of it was made on March 6, 1901 in a Jamaican Gleaner editorial. There, the editorial stated: “Thinking men are not averse to a final Court of Appeal for the empire, but they believe that the Judicial Committee (Privy Council) has served its turn and is now out of joint with the conditions of the times.” To confirm, this was printed one hundred and sixteen years ago.

One argument for retentionists is that the Privy Council is providing a service free of charge for our Governments. Yet, I recall an instance where a prospective appeal failed to go beyond the Court of Appeal because our client could not afford the cost of instructing a solicitor and for a barrister to travel to London to argue his case. This example also brings to mind the 1974 report of the Constitution Commission of Trinidad and Tobago, under the Chairmanship of Sir Hugh Wooding, which wondered whether independence becomes meaningless when we are offered dependence without a charge.

Let’s move forward to the 21st century—2003 to be exact. Even Lord Hoffman, a Privy Councillor, while on a visit to Trinidad conveyed to local lawyers assembled at a Law Association dinner that, “a court of our own was necessary”. He further found it “extraordinary” that for nearly nine years he was sitting as a member of the final Court of appeal for an independent Republic of Trinidad and Tobago, and this was the first time that he ever “set foot upon the islands”. For good measure, if you wish, Lord Hoffman added that if we in the region can play cricket together, why can’t we establish our own Final Court. And what about those Privy Council Judges who never set foot in Trinidad and Tobago? Have these Judges struggled to comprehend the meaning of our colloquial language which included the concept of liming when it came up before them (eg in the case of Nimrod Miguel v the State)?

By not having a final court of appeal, we sacrifice the development of our own regional jurisprudence in exchange for a jurisprudence which is not compatible with the values and aspirations which we dearly hold on to as an independent nation.

I sometimes wonder what will happen if the United Kingdom decides that it would no longer act as the final Court of Appeal for Caribbean countries. Would we then hastily try to put our house in order? Would our willingness to act be then based on an external decision? The choice is ours.

Until then, the circle of our independence is perhaps not truly closed as we still depend on the final decisions of judges in London while disregarding the intellectual and astute minds of those bred in our own backyard.


IMAGE: Justin Sibion Photo by:Allan Ganpat

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