Forget CCJ, why not Trinidad and Tobago’s own final appellate court?

DARRELL ALLAHAR

Guest column

THE phrase “currying favour” is familiar to all of us.

It may surprise some that it has nothing to do with curry. It is derived from a 14th century poem about a French horse called Roman de Fauvel who moved into his owner’s home and became the master. So influential was he, that politicians and clerics all came to try to win over his favour.

In the poem, the word “curreier,” Anglo-French for “to prepare,” meant to rub down a horse. So, over time, to curry Fauvel, came down to us as to “curry favour” or flattering someone for some gain.

The CCJ has been in the news lately, prompted by the sad demise of its first president Justice Michael de la Bastide. We have heard calls from many about completing the circle of independence and furthering Caribbean jurisprudence. Some have even suggested we should accept the CCJ as our highest court in de la Bastide's memory!

Our constitutional arrangements make the selection and establishment of a final court essentially a political issue since it requires a special parliamentary majority to make any changes.

There appears to be an almost unholy enthusiasm and evangelism from pulpit and Bench for accession to the CCJ, that arouses suspicion. Changing a country’s final court is not something that is done on mere sentiment or to give any group an advantage. Courts after all, are supposed to be independent.

I struggle to understand what this Caribbean jurisprudence that is being bandied about really is. Is it simply decisions given by Caribbean judges as opposed to UK judges? That is not good enough. Is it defined by a set of unique legal principles that Caribbean nations share? Are those principles somehow different from the laws that currently apply to Trinidad and Tobago?

While we may have a similar colonial heritage, all Caribbean societies are not the same.

Trinidad and Tobago and Guyana have remarkably different ethnic compositions as compared to the other territories. The post-colonial histories of each territory are different. The economic realities of each are different. Their social cultures are different.

It is ironic that some wish to take refuge in the perceived security of a regional identity as the defining event that would make us truly independent. Why not acknowledge our own TT identity? Why not our own final appellate Court for Trinidad and Tobago? One cannot help but be wary of regionalism presented as independence.

How are CCJ judges appointed?

The Regional Judicial and Legal Services Commission (the RJLSC) appoints CCJ judges. Of its 11 members, four are nominated by various regional Bar associations. Our TT Law Association only has a say in nominating two of those four members. On the other hand, the Organization of Eastern Caribbean States' (OECS) Bar Association has an input into all four of those nominations.

There is more. Two of the members of the RJLSC are to be people from civil society nominated jointly by the Secretary General of Caricom and the Director General of the OECS following consultations with regional non-governmental organisations.

Civil society is a very vague concept. So too is the notion of a regional non-governmental organisation. The regional diplomats may therefore effectively choose anyone, since the RJLSC is not amenable to judicial review in the local courts of the territories.

The Treaty establishing the CCJ itself mandates that territories must make laws to ensure that the proceedings of the RJLSC are not enquired into by any local court.

There is even more. Two of the members of the RJLSC are to be distinguished jurists nominated jointly by Deans of the regional faculties of law and the chair of the Council of Legal Education.

Regional universities and law schools are dependent on government financial support. Academics may have their own ideas about who is distinguished enough and suitable to be entrusted with the job of selecting CCJ judges.

From a distance, the ordinary person not inclined to read the legalese, may think all of these arrangements sound good enough, and appear to represent a wide cross-section of regional interests.

Are those nominating bodies (academia, regional bureaucrats and regional Bar associations) totally independent or comfortably remote from politics, elitism and cliquism?

The question must be openly asked: are our people willing to have judges of their highest court selected by people nominated by institutions that operate (rightly) in their own interest, on the basis of vague and undefined criteria, and where the selection procedure cannot be reviewed by any court?

One senior counsel has been reported as saying that any decision to move to the CCJ is one based on trust. I agree. Another colleague suggested there be a national referendum on the issue. That may be best in the circumstances, since a non-binding referendum can be set up by an ordinary Act of Parliament without amending our Constitution.

The poem that gave us “curry favour” has borne an important lesson over the centuries. The fawning over a French horse that has become master in the story, was to flatter to further some interest. We must all reflect, respect different opinions and be cautious.

Darrell P. Allahar is an attorney with the law firm Veritas Chambers.