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Sir David Simmons passionate about CCJ

Published:Monday | June 22, 2015 | 6:00 AMBarbara Ellington
Sir David Simmons: “My personal philosophy of law and the legal practice is: practitioners of law should seek to demystify law, it is something that affects everybody – rich or poor; high or low."

Widely regarded as 'the architect of the Caribbean Court of Justice (CCJ), Sir David Simmons is passionate about the entire region divesting itself of the shackles of colonialism in this vital area. He was asked by his government in the late 1990s to chair the preparatory committee to develop the court. In 2003, he also chaired the high-level task force that brought about the inauguration of the court.

"I was deeply involved in the CCJ's development and I believe in it passionately," Sir David said as he contextualised the current national kerfuffle being played out in some local circles opposed to aspects of the CCJ.

The reluctance of Jamaica and Trinidad and Tobago to join the CCJ in its appellate jurisdiction continues to spark vigorous debate in Jamaica. Some say the country is not ready for such a court, others make the case for a Jamaican final appellate court, even as proponents of the court say the Shanique Myrie case underscores the merit of the CCJ.

In a wide-ranging interview, Sir David, retired Barbadian chief justice and former attorney general, made a solid case for the region's own final court.

In Jamaica, the parliamentary Opposition has called for a referendum to decide whether Jamaica should abandon the Judicial Committee of the Privy Council, and a similar position has been taken by Trinidad and Tobago nationals who are opposed to the parliamentarians deciding, by themselves, what should be the final appellate court.

Sir David said that what Jamaica and Trinidad and Tobago do is not for him to reflect on, but notes that if there is a provision that requires the decision to be based on a referendum, then they might wish to follow that advice.

"I would have hoped the CCJ could have been a bi-partisan matter for both countries like it was for Barbados - we had no difficulty with it," he said.

 

judicial independence

 

Sir David told The Gleaner that before the 1994 elections, both political parties in Barbados had committed to 'de-linking' from the Privy Council in their respective manifestoes - so at the level of political policy, it was not an issue. He added that both Barbadian parties accepted that they had repatriated both executive and legislative branches of government from the British when they became independent, so only the judicial branch was left.

"We felt we had the competence within the region to provide judges to staff the court," Sir David said, adding that when the time came, advertisements for judges were made in all 54 Commonwealth countries. The process was expensive but they did not want to be limited to Caribbean jurists. However, as matter of policy, the composition of the court would have been weighted in favour of Caribbean judges. The court now has one judge from England and one from the Netherlands Antilles.

"In Barbados, we believed that we should not be found loitering on the doorsteps of the Privy Council on Downing Street long after closing time," he said.

Barbados held that view because from as far as 1989, the judges in the Privy Council had been sending signals that the Caribbean was becoming a burden too heavy for them to bear (Lords Brown-Wilkinson and Phillips). Other law Lords have subsequently repeated the admonition that it was time for us to leave them and do our own thing.

 

commission created

 

At the outset, when the CCJ was being established, care was taken that in the selection of its judges, they would be insulated from any possible political influence. To that end, a broad-based regional judicial and legal services commission was created. Sir David explained that within individual territorial constitutions, resides the concept of the judicial legal services commission for the appointment of judges.

"All we did was to transfer that mechanism and expand it to the CCJ," he said.

The CCJ advocate said further that he had heard the argument about concerns that politicians might put pressure on the judges for a particular decision.

"I discount that because judicial independence is best safeguarded - not by some of the constitutional guarantees, such as security of tenure - but it's by the personal integrity of the judicial officer. You are either corruptible or you are not. It's that simple!" said Sir David, his expression clearly showing his strong feelings about the CCJ.

And, he added, in regional countries where there are constitutional safeguards, judges who lacked personal integrity had in the past been held to be corrupt.

To strengthen the independence of the CCJ, a trust fund was created so that its operational expenses would not depend upon the economic capability of any government at any time. This came against the background of the many instances where individual governments in the region habitually failed to pay dues to regional institutions, thereby causing them to go into financial disequilibrium for years.

"The idea of the trust fund had its genesis in June 2002 at the then Crowne Plaza Hotel here in Jamaica. "It was the eve of the Caricom Legal Affairs Committee meeting - we were discussing ways to make justice more accessible to the people of the region. It was then that the trust fund idea was born," Sir David said.

That idea was accepted at the meeting the following day; the trust details were hammered out and its initial funding of US $100 million was sourced on the international market by the Caribbean Development Bank. All participating countries signed on to it.

"It is, however, ironic that Trinidad & Tobago and Jamaica that also signed that agreement, are now repaying that loan, but not making use of the CCJ," Sir David noted.

Other aspects of the CCJ that were deliberated included Sir David's insistence that the CCJ must have the latest technological equipment to make it comparable to world standards. He said, however, that soon the court would be further strengthened since Dominica is coming on board, but it would be to our advantage if Jamaica and Trinidad and Tobago followed soon after.

For part three, read about the man and his views on the future of the legal profession in the region.

barbara.ellington@gleanerjm.com