By Sir Ronald Sanders
ST JOHN’S, Antigua, Friday August 31, 2018 – 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 per cent 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 abolishment 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 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 lawyer’s 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; costs 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 tax payers 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 is still tied to the British Privy Council. Of the 37 appeals, 7 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 judgments 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 a hundred 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.
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 at the University of London and Massey College in the University of Toronto.