25 Apr 2012
STATEMENT TO THE PARLIAMENT BY
THE HONOURABLE KAMLA PERSAD-BISSESSAR, SC, MP
PRIME MINISTER OF THE REPUBLIC OF TRINIDAD AND TOBAGO
WEDNESDAY 25TH APRIL 2012
On August 31st 1962 our country threw off the shackles of colonialism and took its rightful place among the community of independent nations of the world.
Our then leaders who ushered us into our independent status, in their wisdom, recognised that a number of the institutions which formed part of our national endeavour ought not to be erased with a stroke of a pen but be preserved even if transitionally.
One such institution preserved was the Judicial Committee of the Privy Council as our final Court of Appeal in both civil and criminal matters.
It was no doubt thought that given our common law heritage that the Judicial Committee of the Privy Council had the expertise and objectivity to continue to adjudicate on matters from this jurisdiction and this was regarded as valuable for our fledgling independent democracy.
Moreover, the same would also serve during our early independent years to nourish and fortify our democracy.
Trinidad and Tobago has functioned within the framework of a unitary state regulated by a parliamentary democracy modelled on that of the United Kingdom from which country we gained independence in 1962.
This year, Trinidad and Tobago celebrates our 50th anniversary as an independent state within the Commonwealth of nations, maintaining the Judicial Committee of the Privy Council (“JCPC”) as our highest court of appeal for both the civil and criminal jurisdictions.
Our country’s highest court within our borders is the Court of Appeal, whose Chief Justice is appointed by the President after consultation with the Prime Minister and the leader of the Opposition. Final appeal is decided by the JCPC in London.
Over the years, there has been national and regional dialogue about our retention of the JCPC as our final Appeal Court.
There have been calls for our country to break with the JCPC as other countries with more substantive legal jurisprudence have done. These include India, Australia, Canada, Malaysia, Pakistan and New Zealand but to name a few.
The JCPC remains the final appellate court for some 31 jurisdictions (including 13 independent nations).
Apart from Trinidad & Tobago, countries such as Jamaica, Bahamas, Dominica and Mauritius still maintain the JCPC as a final court of appeal.
Time and again, we have heard comments to the effect that the JCPC is out of sync with the times and our independence and should be replaced with a regional court of last resort.
In considering Trinidad & Tobago’s decision to maintain appeals to the JCPC, it is necessary to look briefly at the events leading up to the Caribbean Court of Justice in 2005.
At the 6th meeting of the Heads of Government Conference of Commonwealth Caribbean Countries in April 1970 in Kingston, Jamaica, a general view (but by no means unanimous) was expressed of the desirability that the Commonwealth Caribbean countries should move toward terminating appeals to the JCPC.
Subsequently, a meeting of the Committee of the various Attorneys General met in August 1970 and in March 1971 and issued a draft report on the establishment of a regional court of appeal for consideration by the Organisation of Commonwealth Caribbean Bar Associations.
In July 1989, at the 10th meeting of the Heads of Government of the Caribbean Community in Gran Anse, Grenada an agreement was reached to the establishment of a Judicial Service Commission responsible for the appointment of Judges.
This led to the West Indian Commission making recommendations during 1992 for the establishment of a Caribbean Supreme Court.
The UNC led Government under Prime Minister Basdeo Panday announced in 1999 that the Government of Trinidad & Tobago would provide a site to house the court and the Heads of government approved the establishment of the Caribbean Court of Justice (CCJ).
On 14 February 2001, the agreement establishing the CCJ was signed by Antigua & Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St Kitts & Nevis, St Lucia, Suriname and Trinidad & Tobago to be followed in 2003 by Dominica and St Vincent & the Grenadines. Altogether, 12 signatories.
On 16 April 2005, the CCJ was inaugurated at a ceremony in Port of Spain, Trinidad and Tobago.
The CCJ has two jurisdictions: an original and an appellate jurisdiction.
In its ORIGINAL jurisdiction, it interprets and applies the Revised Treaty of Chaguaramas which established the Caribbean Community and is an international court with compulsory and exclusive jurisdiction in interpreting the Treaty.
In its APPELLATE jurisdiction, it hears appeals in both civil and criminal matters from those member states which have ceased to allow appeals to the JCPC.
At present, Barbados, Belize, and Guyana have replaced the JCPC’s appellate jurisdiction with that of the CCJ. The CCJ was established at a time when the Caribbean Community sought to forge its own body of jurisprudence and reinforce its right to determine its affairs.
The situation has been complicated by the issue of the death penalty on which the Privy Council, reflecting contemporary English (and EU) mores and jurisprudence has been rigorous in upholding Caribbean appeals in death sentence cases.
It may have always been in the contemplation of the founding fathers that as our democracy grew from strength to strength and our Judiciary developed its confidence and expertise that the time would come when we would have to take responsibility ourselves for the final adjudication of our disputes consonant with the pristine principles of justice and fair play and say goodbye to the Judicial Committee of the Privy Council as our final Court of Appeal.
There were those in the embryonic stages of our independence who canvassed the view that true independence and sovereignty dictated an abolition of appeals to the Privy Council even at midnight on August 31st 1962.
However, our experience over the years has repaid our caution and gradualism in treating with this question.
A quiet debate on this issue has continued over the years and it is with the recognition that the Gordian Knot to the Privy Council had to be cut at some stage that this country joined with our neighbours in conceptualizing and seeking to implement the Caribbean Court of Justice as our final Court of Appeal.
As we celebrate our fiftieth anniversary of independence this year, the time has surely come for us to review our relationship with the Privy Council.
Such review takes into account the critical observations of the community of informed commentators, jurists and institutions for as I have always said that I would listen and then lead.
The prevailing and sustained analysis has suggested that the jurisdiction of JCPC in relation to criminal appeals is a matter of grave concern as it affects the dispensation of criminal justice at a time of high crime in our country.
The Caribbean Court of Justice remains committed in pursuing its enlightened role in Caribbean legal reform in the important area of the criminal law.
It is almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters; that the West Indies at the highest level of jurisprudence should be West Indian.
A century old tradition of erudition and excellence in the legal profession of the Region leaves no room for hesitancy in the Caribbean region.
As is well known, Trinidad & Tobago has maintained for the time being its policy of the JCPC being its final appellate court, as it saw no good or plausible reason in 2005 to replace the JCPC with the CCJ until that court had established over time, the body and quality of its jurisprudence.
The international and global nature of complex and varied legal cases before the JCPC can only aid and assist the development of jurisprudence in the Caribbean which in my view is to be welcomed and we should be slow to cut off all ties with that august body.
The JCPC has an international reputation as being one of the finest commercial and civil law courts in the world.
It inspires confidence in foreign investors and its retention in this regard is conducive to an investor-friendly climate at a time when the international economic order is changing and Trinidad and Tobago is attempting to woo foreign investment from the BRICS (Brazil, Russia, India, China and South Africa) countries.
Consistent with our approach of caution and gradualism, this country has not rushed to surrender the jurisdiction of the Judicial Committee of the Privy Council but has rather kept the issue under constant review.
It is perhaps fitting as we gear ourselves to celebrate what is essentially our golden anniversary of independence that we take another step in the furtherance of our national sovereignty now giving the Caribbean Court of Justice jurisdiction as our final Court of Appeal.
At the recently concluded Caricom Heads OF Government Conference in Suriname, this matter was raised in discussion with several CARICOM heads of government.
On that occasion, I gave a commitment to our CARICOM partners that my government will review our approach to this matter on my return to Port of Spain.
Having undertaken such a review, and consistent with our approach of caution and gradualism, I am pleased to announce that the Government will be bringing legislation to this Honourable House to secure the abolition of appeals to Privy Council in all criminal matters so that this jurisdiction would then be ceded to the Caribbean Court of Justice.
As a measure of our growing confidence in the CCJ, and as a mature and leading world democracy, in this year of our 50th independence anniversary, we will table legislation acceding to the criminal appellate jurisdiction of the CCJ, in very much the same way as Hong Kong did prior to the transfer of sovereignty to the Peoples Republic of China in 1979 and Singapore in 1989. There is ample precedent for such a phased withdrawal from the jurisdiction of Her Majesty’s Privy Council.
Mr. Speaker, earlier today i had the honour to advise the substantive Chief Justice the Honourable Justice Ivor Archie, the Acting CJ the Hon. Justice Wendell Kangaloo; and the President to the Law Association, Ms. Dana Seetahal on this new direction my government is embarking upon.
Such a measure will, of course, require a special majority and I expect bipartisan support for this historic withdrawal from the criminal jurisdiction of the JCPC.
We will continue to monitor the developments taking place in both the JCPC and CCJ including the quality of their decisions in deciding the future course of our judicial system.
In so doing the Government affirms its commitment to deepening of the regional integration process and the development of a Caribbean jurisprudence and, views this as a manifestation of that commitment.
Mr. Speaker, by our commitment today, the government of the PP signals a most historic development in the administration of justice in independent Trinidad and Tobago.
These pledges to strengthen our democracy form the core value in the manifesto of the PP. Today we deliver yet again on a promise to generations to come.
On personal note, Mr. Speaker as a graduate of both the renowned faculty of law of the University of the West Indies and the prestigious Hugh Wooding Law School, it gives me immeasurable pride as Head of Government to usher in this new dawn in the legal history our great nation, Trinidad and Tobago.