The case for a Caribbean court of appeal

• Author: The Hon. Mr. Justice M.A. De La Bastide
• Position: Chief Justice of the Republic of Trinidad and Tobago
• Pages: 401-431

THE CASE FOR A CARIBBEAN

COURT OF APPEAL

THE HON. MR. JUSTICE M.A. DE LA

BASTIDE*

It is almost impossible to win an argument on whether or not the

Privy Council should be replaced by a regional Court as the

final

Court

of Appeal for the Commonwealth Caribbean. The problem is that so

many of the points that are made for and against are matters of

perception or impression, and are incapable of being proved to the

satisfaction of

the

determined disbeliever. For example, is the retention

of a right of appeal to a Court in a foreign land incompatible with

Independence, or is it an exercise of sovereignty? Is the remoteness of

the Judges in the Privy Council, both culturally and geographically, an

asset or a handicap? Will the cost to the taxpayer of

having

to pay for

our own final Court of

Appeal

be effectively offset by the saving to the

litigant who will no longer have to pay fees, at London rates and in

pounds sterling, to English solicitors and counsel, or alternatively meet

the expense (irrecoverable as costs according to a Privy Council ruling)

of transporting his own attorney to England and putting him up in a

London hotel? Are there or are there not enough lawyers in the region

of the right calibre, willing to serve on a regional Court of Appeal?

Like most of you, I am sure, I have strong views on these matters and

I have never been reluctant to share them with those prepared to listen.

It did occur to me, however, that it might better illuminate the debate

on this important issue to adopt a more inductive approach and look at

what has been happening in the Judicial Committee recently and

consider whether that has any message for us. I propose to consider

first how the jurisdiction of the Judicial Committee has been

attenuated. Next I will look at the statistics relating to appeals from the

Commonwealth Caribbean, and finally I will turn to the real meat of

the matter, which is a consideration of a few of the more important

Chief Justice of the Republic of Trinidad and Tobago. This article

was

first

presented as the subject-matter of the fourth Anthony Bland Memorial

Lecture delivered by the author at the Faculty of Law, University of the

West Indies, Cave Hill Campus, Barbados, in March, 1995.

decisions recently made by their Lordships in appeals from the

Caribbean.

The Dwindling Jurisdiction

of the Privy

Council

The number of independent countries who retain appeals to the Privy

Council has been greatly reduced in recent years. If one excludes the

Caribbean, there would appear to be only four, namely Brunei,

Zambia, Mauritius and New Zealand. Moreover, appeals from Brunei

are now to be limited to civil cases, and the authorities in New Zealand

are at the moment in the process of considering whether or not to

retain or abolish the right of appeal to the Privy Council, The right of

appeal from Singapore was greatly curtailed in 1989 and was finally

abolished very recently. Within the last ten years, appeals which used

to go to the Privy Council from Fiji, Malaysia, and the States of

Australia have been discontinued (in the case of Fiji when it left the

Commonwealth). The only non-independent 'clients' of the Privy

Council outside the Caribbean are Hong

Kong

and the Channel Islands,

and appeals from Hong Kong will, perforce, cease in 1997. Soon the

Commonwealth Caribbean countries may find themselves the only

countries (apart from the Channel Islands) who retain appeals to the

Privy

Council.

It may be of course that our circumstances are unique,

or that we, unlike others, have not sacrificed our best interests to blind

nationalism. The fact, however, that we still cling to the skirts of the

Privy Council, when so many others have let

go,

must give rise to the

disturbing thought that maybe what distinguishes us from the others is

a profound lack of self-confidence.

A

Statistical

Review of

Caribbean Appeals

Let us look now at the number of cases which have gone from this

region to the Privy Council during the last ten years, that is from 1985

to 1994, both inclusive. I have included in my figures all the

Commonwealth Caribbean countries including Belize and the Bahamas,

as well as the islands which are still dependencies of the United

Kingdom, including Bermuda. The total number of appeals to the Privy

Council entered during the last 10 years from the region, so defined,

was 214, and the number of appeals determined after a hearing was