By Dr. Francis Alexis
That the jurisdiction of the United Kingdom Privy Council (UKPC) over Caribbean countries should be abolished has long been advocated; by some Caribbeaners, like myself, and by some others; on several grounds.
The costs of appealing to UKPC are prohibitively beyond the reach of some ninety-five percent of Caribbeaners, denying them access to final appellate justice. Also, as UKPC judges repeatedly say, they are far away from the Caribbean and so not familiar with Caribbean realities, unlike Caribbean judges. So, UKPC prevalence stunts the development of an authentic Caribbean jurisprudence.
Abolishing UKPC appeals promotes mental emancipation, enhances Caribbean dignity, and completes independence.
Such points stand erect when one is faced with what was said earlier this week by the President of the UKPC, Lord Neuberger, as Antigua & Barbuda hits the road to its Referendum on whether it should delink from UKPC and sign on to the Caribbean Court of Justice Appellate Jurisdiction (CCJ).
Neuberger indicated UKPC would be sorry to see Antigua & Barbuda go.
When the Jamaican Parliament passed three Acts to quit UKPC and join CCJ, UKPC, in 2005, struck them down for not having been passed in accordance with the procedure fit for altering entrenched provisions of the Constitution.
UKPC would not say what was that procedure. UKPC asked the lawyers for written submissions on the matter, but, having gotten these, UKPC still would not say. Instead, amazingly anticipating speculatively that sometime in the future governmental misbehaviour in Jamaica might result in the CCJ Agreement being violated, UKPC preserved its jurisdiction over Jamaica.
In that judgment, long criticised as being one in which UKPC went slipping and sliding out of orthodox principles, UKPC said it had no interest of its own to serve. No one had at the time so accused UKPC.
Later that year, though, for the first time, UKPC sat outside of London; going to The Bahamas, and holding court there; repeating the trip later. From Nassau, UKPC made a pitch to be allowed to stay in the Caribbean. That pitch, Neuberger, from London, renewed this week.
Implicitly acknowledging that the costs of UKPC appeals make such appeals a wild dream for most Caribbeaners, Neuberger said that UKPC would be looking to reduce those costs. Of course, even if that promise were to be kept, those costs might, in short time, be again restored to their historically prohibitive heights.
After all, Neuberger’s predecessor in 2009, Lord Phillips, complained that Caribbean cases were taking up a disproportionate amount of UKPC time, and called upon Caribbean countries to get their own final appellate court.
So, postures in some quarters of UKPC keep changing, as to how soon Caribbean countries should quit imperial premises, and also as to what Caribbean constitutional law should be. Such inconstancy imposed imperiously from outside does not promote development, it causes bewilderment.
Neuberger told Antiguans that UKPC is an itinerant court. The itinerancy of UKPC began and ended with the few trips UKPC made to The Bahamas in the circumstances set out above.
And, Sir David Simmons notes, those trips had to be paid for by The Bahamas. The Bahamas not chalking up money for further tropical forays, UKPC abandoned itinerancy as quickly as it embarked upon same.
Here, too, then, there is that inconstancy on the part of UKPC towards the Caribbean.
It is CCJ that is an itinerant court. Since its launching in 2005, CCJ, though seated in Trinidad @ Tobago, has gone to several countries: Barbados 2012 and 2013, Belize 2015, Guyana 2014 and Jamaica 2013.
Neuberger promised a pilot video link project between UKPC and the Caribbean. All these centuries, UKPC never provided training to talk about for Caribbean judges, nor equipment for Caribbean courts. By contrast, in the ten years CCJ has been around, CCJ has been doing all this, seeing to the installing of video link equipment in several courts.
Nor may one forget that inconstancy, which characterises UKPC, approaches to the Caribbean, seen above.
So there has been that slipping and sliding that went on in UKPC when UKPC struck down those three Jamaican Acts passed to move Jamaica out of UKPC and into CCJ.
To that must now be added the idea of Neuberger dangling before the Antiguans those promises just when the Antiguans are about to set out on the road to their Referendum. That Lord Neuberger made the presentation he did, at the relevant time, is surely something to ponder.
Moreover, what, if the Antiguans pass an Act to substitute CCJ for UKPC, and its validity is challenged all the way to UKPC? Might it be that, in such a case, some UKPC judges would consider recusing themselves? Can there be a convincing explanation of the kind called for by Sir David Simmons regarding the seemingly irreconcilable divide between Lords Phillip and Neuberger? On such matters, UKPC would be stretched, after Neuberger.
(Dr. Francis Alexis is a former Attorney-General of Grenada, and head of a government-appointed committee seeking to abolish appeals to the British Privy Council and to make the CCJ the final appellate court on the island)