FOUN 1301:

LAW LECTURE 2

The Debate: The Privy Council vs The Caribbean

Court of Justice
A. The Privy Council is at the center of the judicial system in
the Commonwealth Caribbean lies the English Judicial
Committee of the Privy Council. "The Judicial Committee of the
Privy Council is primarily the final Court of Appeal for those
Commonwealth territories which have retained the appeal to His
Majesty in other matters."' The Privy Council is an institution
that became established as the final court for the individual
countries during the era of colonialism.
B. The Privy Council was instituted under the premise that the King
is the fountain of all justice throughout his Dominions, and
exercises jurisdiction in his Council, which acts in advisory
capacity to the Crown. During the colonial era, the King exercised
final appellate jurisdiction over all colonies and territories." In the
case of the West Indies the services of the Judicial Courts were
requested as a relief from the decisions of the local courts.

C. In particular, the Court intervened in cases pertaining to property

such as plantations. By the end of the 19 century, and as the
English dominion expanded, the Privy Council had jurisdictional
power over more than a quarter of the globe. It had earned the
distinction of being respected as a court of great skill, erudition and
versatility.
D. As the- era of colorization came to an end and the British
territories obtained their independence, the services of the
Privy Council were no longer required by the sovereign
nations. In 193 1 the Statute of Westminster enabled the
then independent Dominions to abolish the appeal to the
Judicial Committee if they so wished, and in the 30 years
following the end of the Second World War the great majority
of the other overseas territories of the Crown became
independent.
E. India gave up the appeal upon achieving
independence in 1947 and then came the gradual
winding down of appeals from Sri Lanka (Ceylon),
Africa and Australia. The appeal from Malaysia was
abolished in December 1984 and from the Australian
States in March 1986. Singapore abolished the
appeal in 1994. The appeal from Honk Kong came to
an end on 30 June 1997 on the cessation of British
Sovereignty over the territory and the appeal from
Gambia ended in 1998
F. In the case of the Caribbean, however, (with the
exception of Guyana) the Privy Council maintained its
jurisdiction at the request of the region. Since then,
the Privy Council has rendered its services to the
Caribbean gratuitously and continues to do so to this
day perpetuating the colonial status of the Caribbean
islands." One must then ask why, if the Privy Council is
so respectable and impartial in its decisions, did the
rest of the Commonwealth nations eliminate its
jurisdictions?
Jurisdiction of the Privy Council

A. The jurisdiction of the Privy Council must be discussed in

order to understand its limitations. The Privy Council has
limited jurisdictions and it only functions as a Court of
Appeal in a very restricted sense." People who allege the
importance of the Court, often give it more credit than what it
deserves when determining the appropriate jurisdictions in
Common Law cases.
B. Appeals to the Privy Council lie at the discretion of the local court
in civil proceedings where the matter at hand is one of 'great
general public importance or otherwise ought to be submitted to
her Majesty in Council for decision.'"

C. For criminal cases, the Council will not intervene unless it can be
shown that some serious miscarriage of justice has occurred
either by a violation of the due process of law or by a violation of
the principles of natural justice or other serious injustice. Therefore
some appeals from the Caribbean can be dismissed not because
they are not substantive but because they fall outside the jurisdiction of
the Privy Council.
D. The jurisdiction of the Privy Council bounds it's
ruling according to the precedents established by
the House of Lords. The jurisdictions of the Privy
Council can be evidence of the lack of understanding
of Caribbean dynamics, like is the case with the death
penalty, an issue that will be addressed later
A. Note that in 2018, both Antigua and Barbuda and
Grenada had referenda on the CCJ and both countries voted
not to accept the CCJ as their final appellate court.

Arguments for the Privy Council/against the CCJ

1. Good record of accomplishment - quality judgments –

wealth of jurisprudence (it has made decisions in many cases
and has thus developed a vast body of legal reasoning) -
good repute
 For example, many in the Caribbean state that they do not
want to assume responsibility over the independence of the
judiciary. They claim:
“It would be an extravagance to cut ourselves off
from the source of our law and from the contemporary
evolution of a legal system. The Privy Council gives us
the opportunity to benefit from, and contribute to, a
common pool of case law and to keep in touch with a
variety of similar legal systems”.
2. History- in existence for many years-the court was
institutionalized in 1833

3. Objective an impartial- the court is far removed from the

Caribbean and so its decisions are impartial and made
solely on the basis of the law.

4. Risk of political appointment of CCJ judges- small size of

Caribbean, friendship and kinship ties- The judges of the
Privy Council on the other hand have no such ties with
persons in the Caribbean.
5. Free to litigants- There is a group in England called the
London Group whose members work closely with the
Independent Jamaica Council for Human Rights.
This Group includes persons such as Edward Fitzgerald
Q.C. and the members are always willing to represent
defendants in death penalty cases free of cost.

6. Human rights oriented- England abolished the death penalty

in the 1950s. In fact all of Europe is has been declared a
death penalty free zone. Europe’s foreign policy
incorporates recommendations for the abolition of the death
penalty.
7. Well trained, knowledgeable, excellent judges

8. CCJ will be a financial burden on Caribbean

governments- we have to repay the loan borrowed for setting
up the court

9. Poor state of local courts- dilapidated buildings, poor

infrastructure, slow- some argue that the money spent on
the CCJ would be better spent fixing the problems associated
with our local courts.

10. Foreign investors trust the Privy Council

11. Issue of time- it has been argued that the CCJ has
not been properly debated and we are not ready for
it as a final court. There is the suggestion that we
should fist try the CCJ as a tier below the Privy Council
to see whether it works.

12. The CCJ could become embroiled in political

issues which could weaken its authority
Caribbean Court of Justice (CCJ)

A. The Caribbean Court of Justice (CCJ) was first proposed at the

sixth Caribbean Heads of Government Conference in Jamaica in
1970. It was said to be a critical component of the Caribbean
Single Market and Economy, a Caribbean response to the rapid
process of globalization. The CCJ was designed as a court with
dual (both appellate and original) jurisdiction.

In its original jurisdiction the CCJ will have exclusive jurisdiction to

interpret the Revised Treaty of Chaguaramas and will be the sole
arbitrator as it relates to disputes between participating states, i.e.
countries governed by the treaty. Note that in 2018 both Antigua
and Barbuda and Grenada had referenda on the CCJ and both
countries voted not to accept the CCJ as their final appellate court.
B. The CCJ also serves as a court of last resort; the
last avenue of appeal for criminal and civil matters
for those in member nations — currently Barbados,
Belize, Dominica and Guyana but with a number of
others such as the Bahamas and Jamaica having
long signaled an interest in joining. It’s a recognition by
member states that the CCJ is a better fit for their
modern nations than the UK- based PC.
Arguments for the CCJ

A. Completing the Cycle of Independence

The argument which is made here is that the abolition of

appeals to the PC and the replacement of that body by the CCJ
will complete the cycle of independence of the countries of the
Commonwealth Caribbean. The point is made with great force
that having attained independence between 30 to 52 years in
the case of most Commonwealth Caribbean countries, the time
has now long past when we should have shed ourselves of our
colonial past and the reliance upon Judges based in London to
decide matters coming before our Courts.
 The foregoing point has been forcefully expressed by a
retired CCJ Judge, Mr. Justice Duke Pollard in his book entitled
“The Caribbean Court of Justice (Closing the Circle of
Independence)” where at pages 126 and 127 he states as
follows:
“The genesis of the jurisdiction of the Judicial
Committee of the Privy Council is traceable to the
inordinate degree of arrogance associated with the
disposition of royal power in the middle ages.
The Judicial Committee of the Privy Council was
perceived as an indispensable attribute of empire and the
judicial symbol of colonialism.”
 Psychological considerations- Privy Council is made
up of judges who are historically considered
superior-psychological remnant of colonialism-
breaking free of all colonial ties will allow us to
develop more confidence in ourselves to enable us to
make our own final decisions. The Privy Council also
wants to get rid of appeals from the Caribbean. Lord
Phillips (head of the UK Supreme Court)
B. Greater Access to Justice

The argument here is that the replacement of the PC by the CCJ as

the final Appellate Court will provide citizens of the Commonwealth
Caribbean countries with much greater access to justice. This
means that they will be able to take their matters to the final Court of
Appeal if they so wish at a much reduced cost. The argument is that
appeals to the PC are extremely expensive and that factor operates
as a deterrent to prosecuting an appeal before that body. If the appeals
were to be prosecuted in Port-of-Spain at the headquarters of the CCJ,
then it is more than likely that many more persons who may be
aggrieved by Court of Appeal decisions in the Caribbean would be in a
financial position to approach the CCJ.
C. Intellectual Capacity of the CCJ Judges and Conduct of
Hearings

It can be stated quite emphatically that there is no question that the

intellectual capacity of the Judges in the CCJ compares very
favourably with Judges in any jurisdiction in the world. The ability to
analyse legal issues and write carefully crafted judgments with reasons
is not a matter in dispute. The Caribbean has produced brilliant legal
minds for decades.

In addition to the foregoing, the CCJ conducts its proceedings with

the dignity and courtesy which is befitting a final Appellate Court.
There is no manifestation of apparent bias, hostility or badgering of
counsel by members of the Court.
D. Because of the distance from the Caribbean Privy Council
judges are insensitive to Caribbean conditions - they do not
understand the culture, Caribbean realities, jargon, mind
set of Caribbean people, context of local crimes etc. They
are from confined social circumstances and they admit that
they are conservative in their judgments because they
know very little about the Caribbean. Lord Hoffman, a judge of
the Privy Council, visited Trinidad for the first time in 2004 and
Jamaica for the first time in 2009. He stated that he is not
qualified to deal with our cases because he does not
understand our culture
E. Privy Council is not often used because ordinary
people cannot afford it. It is mostly used for death
penalty and commercial cases. One writer argued
that only the richest (companies) and the wickedest
(death penalty cases) access the Privy Council. The
Privy Council hears 10-15 appeals per year from
Jamaica, 15- from Trinidad and very few or none at all
from other territories.
F. The CCJ will allow the Caribbean to develop its own
jurisprudence and the confidence to make our own
final decisions- Caribbean judges are very cautious
at present because they know that their judgments
can be easily overruled.

G. CCJ will operate as an itinerant court- the judges will

move across the Caribbean and sit in different
countries to hear cases from those respective
countries.
Referendum and the CCJ

A. Groups in civil society have argued that the method being

used in Jamaica to implement the CCJ as a final court is
contrary to democratic principles and repeatedly called on the
government to hold a referendum on abolition of appeals to the
Judicial Committee of the Privy Council so that such a decision
will be legitimate. They argue that the termination of appeals to
the Privy Council amount to abolition of a right previously held by
persons and so the views of the people should be sought.
B. The former Jamaican government argued the following:
1. A referendum is not required by section 110 of the
Constitution which maintains the right of appeal to the
Privy Council as this is not an entrenched provision.
The Privy Council can be removed by a simple
majority vote in both houses.
2. In general elections the populace got a chance to
indicate by their vote whether or not they wanted the
CCJ
3. A referendum is costly
4. A referendum would cause further divisions along
political lines.
5. Other countries such as New Zealand abolished
appeals to the Privy Council without the use of a
referendum
C. The Privy Council however, gave full support to the
arguments for referendum in the case of Independent
Jamaica Council for Human Rights (1998) Ltd & Others
V Hon Syringa Marshall Burnett & Attorney General
of Jamaica (CCJ Case ). On September 30, 2004 the
Governor General of Jamaica gave his assent to three bills,
the broad effect of which was to abolish the right of
appeal to the Privy Council and to substitute a right of
appeal to a new regional final court of appeal, the CCJ. The
question to be decided by the Privy Council was whether
the procedure adopted in enacting the legislation complied
with the requirements laid down in the Constitution.
D. The court noted that the preamble to the Agreement Establishing the
CCJ acknowledges a desire to have the court entrenched in the
constitutions of the contracting states. To alter any provision of the Jamaican
constitution which is deeply entrenched, section 49 requires that the Bill
must be passed in the Upper and Lower House by not less than a 2/3
majority of all the members of each house and the Bill must be approved by
the majority of the electorate. Section 49 notes that this process cannot
be circumvented by creating a superior court which does not enjoy
constitutional protection, that is, creating the CCJ without it being deeply
entrenched. If the court is not entrenched there is the risk that the
governments of contracting states might amend the CCJ Agreement so
as to weaken the independence of the court and erode the protection given to
citizens against governmental behaviour. Since the Bills did not follow the
correct procedure they were found to be unconstitutional and thus void