In Defence of the Privy Council By Kiel Taklalsingh - Attorney At Law
The question of replacing the Privy Council is ultimately an issue of trust between the people of our country and the Caribbean Court of Justice. A NACTA poll in 2019 purported to quantify the levels of this level of trust and confidence and reported that 17% of those polled had trust in the CCJ. The CCJ is not our final court of appeal currently (except in treaty matters) so I don’t quite understand what the pollsters measured or upon what basis those polled could have provided an informed view. Still, 17 % says something. If I had to guess, I would say that the figure reflects a general distrust in our own local institutions and is not necessarily an outright indictment of the CCJ.
Respectfully, trust cannot be earned by half-baked arguments and politicizing the issue. In my view, some of the arguments I have heard in support of abolishing the PC are unconvincing;
Prohibitive CostIt is not mandatory that you retain a Queens Counsel or Senior Counsel to represent you in the PC. The lawyer that represented you in the High Court and Court of Appeal can also represent you in the PC. Replacing the PC with the CCJ will not somehow require lawyers to charge reduced fees; both are third tier apex courts and would predictably require the same levels of preparation, hours spent and administrative expense. To put it simply, the legal cost for a Privy Council Appeal should ordinarily be equivalent to an appeal at the Caribbean Court of Justice. There is a relatively inexpensive fee of approximately 500 pounds (from my recollection) in order to access the PC (I am not sure if the CCJ has such a cost) but the service a litigant receives from the Registrar and staff of the PC is worth it in my view. The PC, even before the pandemic, offered virtual hearings/attendance and therefore you no longer have to incur the costs of travelling to London in order to have your matter heard at the PC.
Relic of ColonialismIs this even a real argument? The modern commercial world uses London for legal services as the premier seat of arbitration and dispute resolution. In other words, people from legal jurisdictions all over the world continue to utilise jurists from England to resolve complex contractual and other commercial legal disputes. In a recent lecture by Lord Reed, on the occasion of London International Disputes Week, he noted the following: “The UK is one of the world’s largest centres for legal services, ranked second by revenue only to the US. According to two studies published last year it is the world’s leading centre for international dispute resolution by litigation and, equally with Singapore, by arbitration”
Is there some neo colonialist threat that the entire world has succumbed to which we must fend off by abolishing the Privy Council? Off course not. Quite frankly, some of the anti-colonial rhetoric I have heard on this topic sounds more like sophisticated fascism than a genuine desire for a Caribbean Court. Branding the English as evil colonisers in modern times rings hollow in my respectful view in a context where it is this Government’s preference to keep in place laws such as Sedition and maintain other colonial laws which England has long abolished. The Government was quite happy to regulate our lives, lock fellow citizens out of their country, close down businesses, continue to force us to wear masks (with no current justification) for the past two years through the use of an antiquated colonially conceived Public Health Ordinance, but suddenly has a problem with the Privy Council?
Different Values and CultureExactly whose culture and values are being frustrated by the Privy Council? Is it Senator Vieira’s? (the mover of the motion in the Senate to abolish the PC) or is it the governing PNM’s culture and value system? If we are going to make a decision on our apex court based on “values” and “culture” then, respectfully, I need some more particulars before I subscribe to that reasoning. Should we also do away with the Separation of Powers because its origins could be traced to Montesquieu’s Spirit of Laws? Or, should we also throw out the entire Rule of Law concept because its origins could be traced to a place called Runnymede in England where the Magna Carta was conceptualized and signed?
The problem with this argument is that it is Lilliputian thinking. Our very own Lilliputians, lurking in their sinecures, prefer to tie down our ideas of constitutionalism and democracy to what they say it is and not recognize that these concepts are the product of thousands of years of global history and scholarship. The proponents of this argument, as far as I am aware, cannot point to a single PC decision where there was some radical departure from the culture and values inherent in Trinidad and Tobago society that could justify abolishing the PC. In fact, very recently, the PC was asked to consider the controversial issue of the death penalty in our society. In England, the death penalty is considered to be cruel and unusual punishment; had an Englishman been sentenced to death in modern times the Supreme Court of England would not hesitate to strike down any law which imposed a penalty of death upon him. The very same judges, who sit as judges on the PC, did not overreach on this issue; they did not take the opportunity impose those values on us through a judicial edict and abolish the death penalty for us. Instead, the PC, among other things, felt that it was a matter for our parliament to decide because the death penalty was saved by a constitutional provision known as the savings law clause. If anything, it seems that the PC is perhaps more deferential to our local context, values and cultural norms than we give them credit for.
SovereigntyWe are a sovereign democratic state. Section 1 of the Constitution enshrines that. Accessing the PC as our final court does not derogate from sovereignty; in fact, I think it enhances it. Sovereignty, in the context of our democratic state, is less about preserving territorial boundaries and more about ensuring that power resides with the people of this country as opposed to the Government or ruling political party. In reality, it is permanent declaratory injunction against totalitarianism and authoritarianism. When sovereignty truly resides with the people of a country, dictators and autocrats are kept out and democracy flourishes. Edmund S. Morgan, in his work “The Rise of Popular Sovereignty in England and America” describes the requirement of popular sovereignty in this way: “What popular sovereignty did require, in the eyes at least of those who thought seriously about it, was a means by which some body or bodies capable of doing so could speak decisively and authentically for the people, so as to contain government, whether monarchical or otherwise…” True concern for our sovereignty is less about keeping everything within Trinidad and Tobago and more about ensuring that those who govern us remain accountable and subject to the will of the people of this country and not the other way around.
Modern day dictatorships around the world have thrived because various regimes have taken control of indigenous judicial systems and judicial officers within their borders. In their book “How Democracies Die”, Steven Levitsky and Daniel Ziblatt, studied several dictatorships in modern history and observed that elected autocrats “subvert democracy” by packing and “weaponizing” the courts and other neutral agencies. They found that many government efforts to subvert democracy are “legal”, in the sense that they are approved by the legislature or accepted by the courts. They may even be portrayed as efforts to improve democracy – making the judiciary more efficient, combating corruption or cleaning up the electoral process.
In my view, there is a 0% chance of any Government in Trinidad and Tobago exerting influence and control over the Privy Council. That is not to say that our current judiciary is not independent or robust in its protection of constitutional rights and freedoms. What I do say, given recent events such as the Police Service Commission scandal- where, in my view, the Government manipulated the process of appointing the Commissioner of Police- I prefer more insulation of our apex court from any potential executive interference.
I do not in any way deprecate the work of the brilliant and remarkable judicial officers who currently occupy the CCJ and indeed our own Judiciary. That is not my intention. If we are to build trust then we must have frank, open, honest and rigorous debate.
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