Are the Law Lords all that immaculate?
Rev. Dr. William W. Watty
Since no one else has deemed it wise or proper, perhaps a fool might rush in with a question or two. I take it for granted we are all agreed that no Court of Law, however supreme, no Bench however eminent, no judgment however final can make just what does not appear to be entirely and clearly so; and appear so not only to legal practitioners who thrive on loopholes and technicalities, but also to law-abiding citizens who recognize the paramount claims of justice with minds uncluttered by the rigmarole, jargon and cobwebs that tend to confuse and entangle the issues.
Ever since the handing down of the judgment by the Privy Council on the matter of Mr. Kieron Pinard-Byrne versus Mr. Lennox Linton, I have been exercised in mind with the case from the admission of the Appeal to the handing down of the Judgment. My disquiet has been less about the Judgment itself which, let me confess, I have not had the opportunity to digest, than the process adopted in bringing closure to the suit, taking into consideration the circumstances surrounding the appeal and the extraordinary, not to say abnormal, arrangements that became necessary for the adjudication. Here was the Privy Council of the United Kingdom which, so we were informed and re-assured authoritatively, did not wish to receive any further appeals emanating from the lower jurisdictions in the Commonwealth Caribbean – a declaration that should have ended all further debate about a Regional Supreme Court and our accession thereto. It was precisely for that reason, therefore, that requests were made repeatedly for the release and publication of the documentary evidence in corroboration of the verbal report so that, accession to the Caribbean Court of Justice might be expedited. Alas! No such confirmation was, or has ever been, forthcoming, unless it was the silence of the Privy Council that signified a tacit confirmation. But not so at all! For while the debate on accession to the Caribbean Court of Justice was proceeding, lo and behold, the Judicial Committee of the same Privy Council decided to entertain an Appeal against a Judgment that was handed down by the Eastern Caribbean Supreme Court and, after due deliberation, to reverse that Judgment, and rule in favour of the Appellant. But that was not all!! Before that final judgment was handed down, the Commonwealth of Dominica, by majority decision in its House of Assembly, had resolved to discontinue affiliation with the same Privy Council as its final Appellate Jurisdiction and seek accession to the Caribbean Court of Justice as a replacement. But even that was not all!!! For notwithstanding the disaffiliation, the Judicial Committee proceeded to hand down its controversial Judgment, as though nothing had changed in Dominica, in whose Assizes the suit was originally lodged, whose affiliation remained intact with the Eastern Caribbean Supreme Court, where the first appeal was upheld; but whose judgment was overturned by the Privy Council after its Appellate Jurisdiction for cases originating in Dominica, was terminated.
Let me repeat that my question is not about the status of the Privy Council, its right to entertain appeals, or the merits of the Judgment it delivered. The one and only question is, given the peculiar set of circumstances that necessitated the unusual arrangements that were made for the adjudication and, above all, given the oft-reported disinclination of the Privy Council to receive such appeals from jurisdictions in the Commonwealth Caribbean, whether that Appeal should have been entertained at all, in the first place, and more importantly, whether, in view of a controversial judgment that was likely to be the outcome, another course for closure should not have been explored, precisely because of the peculiar circumstances and arrangements surrounding the adjudication. If it can be demonstrated that no other course was open to the Judicial Committee at the outset or the conclusion, I am ready to concede that everything I have written so far amounts to nothing.
Until then, what I have written I have written, because I suspect that, even allowing for the prerogative of the Privy Council's decision to entertain an appeal, whether reluctantly or happily, another course for the closure should have been explored seeing that the Judgment would be controversial and, handed down peremptorily, would necessarily have reflected negatively upon the competence of the Eastern Caribbean Supreme Court to adjudicate such appeals. It is my understanding that the Judicial Committee need not have taken that provocative course. The matter could, quite properly, have been returned to the Eastern Caribbean Supreme Court for review, accompanied by a Statement indicating the Judicial Committee's misgivings, differences questions etc., and allowing the lower Jurisdiction an opportunity to reconsider and reach its own deliberate decision, whether for reaffirmation, withdrawal or revision of its earlier judgment, but also allowing the litigants the right of appeal to the Caribbean Court of Justice for the final adjudication. It is also my understanding that such a course, had it been adopted, would not have been without precedent.
For I cannot accept that this was an open-and-shut case, or that the Bench in the Eastern Caribbean Supreme Court was so inferior, and its Jurists so inept, that they failed to recognize some aspect of the case that stared the Law Lords in the face, as if it was a contention between demonic black and angelic white, with the legal, social and moral issues contrasting so glaringly, that the outcome, either way, could be celebrated with the self-serving hallucinations of vindication. It was nothing of the kind. It was grey all over and throughout. It was a balancing act, delicately poised, between the defects of investigative journalism that could inflict immeasurable harm needlessly, and the increasing complexities of high crimes that could flourish out of control when the vital, incriminating evidence is rendered inaccessible. Therefore, while the Law Lords, taking the lofty bird's eye view, might approach the case with a "dictionary" definition of libel that calmly floats the Judgment in one direction, but oblivious of the upsurge of "respectable, white collar" corruption overseas, if not in the United Kingdom, threatening disruption far worse than aggressive journalism could ever provoke, the Jurists of the Eastern Supreme Court, visualizing the onset of economic and social chaos, must have taken also the fish's eye view. For justice will no longer be served by abstract interpretations and application of the Law in a social vacuum. Increasingly sociological perspectives will also impinge upon the administration of justice. Therefore a suit such as this, having originated in the Commonwealth of Dominica, would have been settled more satisfactorily in the region of its origin than in a Jurisdiction, foreign and remote.
There is also the question of costs. Simple logic urges the question; if the defendant must meet costs, having lost the suit in the High Court and the appeal in the Privy Council, should he also be required meet the costs when judgment went in his favour? Should not the costs finally awarded, include a reduction of those costs that would have been awarded had there not been the Appeal? Justice is no longer about Law interpreted and applied in a vacuum. It is a social and economic reality.