Commentary: The CCJ – A court for the people

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Sir Ronald Sanders is Antigua and Barbuda's Ambassador to the US and the OAS. He is also a Senior Fellow at the Institute of Commonwealth Studies, University of London and Massey College in the University of Toronto. The views expressed are his own. Responses to: www.sirronaldsanders.com

By Sir Ronald Sanders

Throughout the 185-year history of the Judicial Committee of the British Privy Council, it has never provided access for people of little means except for a few persons on death row who got free legal service from British lawyers.

This stands in stark contrast to the Caribbean Court of Justice (CCJ) where, in the three years following its inception in 2005, civil appeals outnumbered criminal appeals by almost seven to one. About 15 percent of the civil cases filed in the CCJ were from persons too poor to pay filing costs, which the court waived, giving poor people unprecedented access to appeals.

These cases have included: a property dispute between two poor tenants, a public housing agency’s contractual obligation to a signatory’s next of kin, the admissibility of a police officer’s testimony in a case of child molestation, and a civil servant’s dismissal through the statutory abolition of his appointment. There have been others.

Importantly, these cases came from only four countries that had signed-up to the CCJ as their final appellate court. They would have been much more numerous if all the people of the Caribbean Community (CARICOM) had access to the CCJ.

As a court of final appeal in criminal and civil matters, the CCJ is truly a people’s court.

An authoritative study conducted by Andrew N. Maharajh and published by Cornell University analyses the costs involved in appealing to the Privy Council in contrast to the CCJ. The findings show overwhelmingly that the CCJ is much more accessible to the less well-off than is the Privy Council, reinforcing that the CCJ is as much a people’s court as it is a final arbiter for wealthy business persons and governments.

For instance, the study finds that “the cost of filing an appeal with the Privy Council is more than five times greater than filing an appeal with the CCJ. A comparison of other associated filing costs for both courts reveals a similar ratio”. Other big expenses are incurred to take a case to the Privy Council. Persons making an appeal have to buy plane tickets for themselves and their local lawyer and find and hire an English licensed solicitor to prepare the case file; in some cases, they must also retain expensive British barristers. Additionally, the cost of accommodation in London for the duration of the litigation has to be met. In any event, two sets of lawyers’ fees must be paid. According to the study, all of this produces a very expensive appeals process, estimated at an average minimum cost of US$65,000. Clearly, outside the reach of any but the wealthy.

By contrast, overall costs of appeals to the CCJ are considerably cheaper. There is no need for two separate sets of lawyers, a local law firm can appear before the CCJ; the cost of travel to Trinidad, the seat of the Court, is cheaper than to London; the CCJ is also a travelling court, therefore there might be no need for lawyers to travel. Most importantly, the CCJ allows lawyers to appear from their homes or offices via its video conferencing facilities. Additionally, the CCJ operates an e-filing system to receive and process all filings electronically, eliminating the cost for lawyers’ travel and accommodation and, thereby, the overall cost to the litigants.

If all CARICOM states took advantage the CCJ as a final court of appeal, not only would wealthy persons and governments have access to the court, but ordinary people, across the region, would enjoy considerably better access to justice than they do now. Social equality in the justice system would, at last, be served.

Significantly, all CARICOM taxpayers have already paid for access to the more affordable CCJ. Every CARICOM government has contributed from its tax revenues to the trust fund that independently finances the court. Therefore, currently, the people of eight CARICOM countries, particularly the less well-off, are being denied access to an affordable justice system for which they have paid – it is a people-asset from which the people are blocked.

Interestingly, as an example, over the last 28 years, 1990 to 2018, only 37 appeals have been made to the Privy Council from Antigua and Barbuda, one of the countries that are still tied to the British Privy Council. Of the 37 appeals, seven were criminal and 30 were civil. In the clear majority of civil cases, only big companies and the government were involved, precisely because only they can afford the costs involved in appeals to the Privy Council. Poor Antiguans and Barbudans, like their peers in other CARICOM countries, simply cannot afford the costs.

By the same token, less well-off persons, from the four CARICOM countries that are part of the CCJ appellate process, have utilized the court, which has facilitated the applications of the poorest even in civil cases.

What then of the quality of justice that the CCJ delivers? The judgements of the Court have been widely and internationally acclaimed. They are all available on the court’s website for public scrutiny. Each of the judges of the court is highly respected by their peers in the global judicial system. It should be recalled that the English-speaking Caribbean has been producing lawyers, expert in many fields, for over 100 years. Those lawyers have served in many capacities in the region and the world and have contributed enormously to international jurisprudence.

The judges of the British Privy Council also gave great service to the development of law in Commonwealth countries and beyond, for which they are commended. But, they do not possess the infallibility with which they are decorated by those in our region who cling to them. Their decisions have been repeatedly overruled by both the European Court of Justice and European Court of Human Rights.

The judges of the CCJ are, at the very least, the equals of the British Privy Council. And, as the facts bear out, the CCJ is the Caribbean people’s court as much for the poor as the rich.

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3 COMMENTS

  1. I am not one that is in favor of the fact that our final court of appeal in the Caribbean is overwhelmingly the British Privy Council, despite we have the CCJ. However, the author of this article is so biased in his piece that he can only raised the pros of the CCJ and not the cons. Highlighting the cons of the CCJ would have surely enlighten readers as to why only four Caribbean countries have adopted the CCJ as their final arbiter.

    As is mentioned by the author it is Caribbean taxpayers who are contributing to this court. Therefore, the Caribbean countries that are not accessing this court as their final court of appeal are losing out in a big way. However, as one former Trinidadian Supreme Court Justice noted recently in his piece on this same subject, “for fear of political interference in the jurisprudence at this level it is wise for some countries to maintain the Privy Council as their final arbiter.” Though this is a very sad state of affairs when those that are highly capable and are as competent as the Privy Council justices to handle our own legal matters are denied the opportunity to do so, it is something that is warranted.

    The simple reality is the political power brokers in the Caribbean have a stranglehold on everything that revolves around them. The judiciary is in no way immune from this strangulation. This is as clear as crystal to those of the Caribbean who are not hypocrites. Therefore, for this article to behave as if Caribbean people are willing to forsake their own at all cost and cling to the Privy Council at the very high cost to them as highlighted by the author, it rather treating a very important issue without the rigour it deserves. Furthermore, its treatment is rather self-serving and too simplistic to say the least. Under what circumstances would one expend so much for more justice in the Caribbean at the highest lebel but keep on going to the Privy Council in England to get less? The author fails to say why but instead behaves like we are so stupid as the politicians of the Caribbean think we are. Therefore, we will always trade more for less at any cost to us.
    The fact of the matter is, as was highlighted by a former officer of the highest court in Trinidad and Tobago, “it not that we must just embraced the CCJ because we think it can deliver but because it will deliver what it is tasked to deliver for all and sundry at the end of the day – that is justice.” This nothing farthest from the truth, especially when those with political power have the authority to influence the judiciary process and the judiciary and do so influence from top to bottom. It is common practice throughout Caribbean. Don’t forget how officers of our courts are being treated by sitting Prime Ministers when they attempt to exercise their independence. Let us not forget recent and on going issues in a certain OECS where a certain political strongman has used his political power to have serious criminal charges dropped against him. We were reminded by the former Supreme Court Justice of Trinidad and Tobago how the outcome of a matter involving a politician that is currently before the court in St. Vincent and the Grenadines can be skewed in favour of that party if it is to reach the CCJ.

    Mr. Author we are not saying “no” to the CCJ because we are foolish in the Caribbean but because we are very fearful of the manner in which political power can influence justice at the highest, thereby denying us of justice absolutely. Please forgive for not being too quick to make up our minds on the CCJ. All we need is a little more time to weed the political influence out the system first. Is this asking too much? No! I don’t think so.

    • Many excellent points.

      The question to ask is why these elites always say that every major change they want to impose on the rest of us is “for the people” when they are almost always self serving innovations meant to boost their power, prestige, or economic well being.

      We must call a spade and spade: why are these “for the people” innovations mainly championed by the traditional white and mulatto elites currently represented by Sir Ronald Sanders (who hypocritically would never renounce his cherished British knighthood), Dr. Ralph Gonsalves, Prime Minister of St. Vincent and the Grenadines, and Adrian Sanders, president of the CCJ.

      Can we ever trust people who traditionally employed their race, colour, status, wealth, privileges, and power to oppress the rest of us? Can we ever change the spots on a leopard?

  2. Let us not forget that the CCJ is the brainchild of one of the most useless, inefficient, and dysfunctional regional association in the history of the world: CARICOM.

    Let us not forget that the only thing CARICOM is united on from a legal perspective is slavery reparations, a greedy demand with no law-based or moral underpinnings that is bound to fail if it every came to any European or world court.

    Let us not forget that our Caribbean people have no trust or confidence in our own legal system, from bottom to top and every else in between (https://www.caribbeannewsnow.com/2018/08/07/letter-if-justice-must-be-seen-to-be-done-we-must-not-abandon-the-privy-council/).

    Let us not forget that we were fooled by exactly the same arguments from exactly the same elites to give up most of our ties to Great Britain when our tiny island-states were brainwashed into voting for independence, a decision many of us regret because it has left us worse off than we would otherwise be as micro-countries incapable of ever acheieving economic self-reliance let alone economic prosperity.

    Fool us once with the empty promises of sovereignty, shame on you; fool us twice with the CCJ using exactly the same arguments about our leadership abilities and being masters in our own house, shame on us.

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