Bolstering the logic of the CCJ
Jamaica Observer
October 20, 2003
THOSE who espouse the logic of the Caribbean Court of Justice (CCJ) and its place as a court of last of resort for the majority of countries of the Commonwealth Caribbean would have had their positions bolstered with two developments over the past week or so.
One happened on the other side of the world, in New Zealand, where its parliament voted to end appeals to the Privy Council by yearend and to have its own Supreme Court begin hearing appeals by July next year.
With New Zealand's departure the independent nations of the Caribbean, if they, at this stage, catch a bout of cold feet, would remain the only significant group of sovereign countries to retain the UK-based court as their final court of appeal.
While the New Zealand development provides comfort to the Caribbean that its quest for a "national" court is not, in this a day and age, a uniquely held aspiration, the more important development, in our view, was a speech in Trinidad and Tobago two weeks ago by Lord Hoffman, a judge of the Privy Council.
Lord Hoffman, for most of the people of the Caribbean, if they have ever heard his name before now, would be a sort of abstraction. He, and other judges who sit on the Judicial Committee of the Privy Council, are not in our consciousness as real people -- human beings who have concepts and notions about the society over which they make judgments and how these concepts and ideas shape the judgments they make. It is a matter that Lord Hoffman has obviously thought about and about whose inadequacy that he, as progressive thinker and jurist, has arrived at definitive conclusions.
Indeed, Lord Hoffman made this point of potential disconnection and raised the matter of the ultimate relevance of the Law Lord in a simple, but profound observation, in his speech to the Trinidad and Tobago Law Association.
"It is an extraordinary fact," he remarked, "that I have been a member of the final court of appeal for the independent Republic of Trinidad and Tobago, a confident democracy with its own culture and national values, and this is the first time that I have set foot on the islands."
In other words, the remoteness of the Privy Council deprived its judges of the context and nuances of the communities and people upon which they are called to stand in judgment.
This is not an argument that the Privy Council rulings and judgments are inherently bad, but it is an appreciation that they are perforce informed by a jurisprudence of a culture and society that is different. And even in the context of the growing universality of aspects of the law, there are things which make societies and cultures unique and different. The best jurisprudence understands, and responds to, these subtle shifts in societal texture.
This is part of the context for Lord Hoffman's support of the CCJ and he, unlike the doubters in this region, appears to have no question that the region has the capacity and intellect to manage its own final court.
Much of the debate that has taken place in the Caribbean over withdrawal from the Privy Council has gone on in New Zealand, but Prime Minister Helen Clark's Labour government has made the point that it is time New Zealanders take responsibility for their own final court.
The new Supreme Court, Prime Minister Clark noted, will not mean the abolition of the right to appeal, but an "expression of confidence" in the New Zealand judiciary "to do the job of our independent and sovereign country in the 21st century".
That is a profound statement which, hopefully, will echo across the Caribbean.
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