COMMENTARY

Privy Council Decision should not halt Caribbean Court

by Sir Ronald Sanders, a former Caribbean diplomat, now corporate executive, who publishes widely on the problems of small states in the global community

Tuesday, February  8, 2005

The recent ruling in the United Kingdom stopping Jamaica from replacing the Privy Council with the Caribbean Court of Justice (CCJ) as the court of final appeal should not delay the planned establishment of the Caribbean Single Market and Economy (CSME) or the operation of the CCJ.

Indeed, in the words of the CCJ’s President, Michael de La Bastide, after the Privy Council ruling, it should be “full steam ahead for the Caribbean Court of Justice”.

The Privy Council in the United Kingdom has ruled that the three Acts, collectively passed by the majority in the Jamaican Parliament to abolish the right of appeal to the Privy Council and to substitute a right of appeal to the CCJ, were not passed in accordance with the procedure required by the Jamaica Constitution and are accordingly void.

Effectively, this means that the Privy Council is still the court of final appeal for Jamaica and, further, the CCJ, at the present time, has no jurisdiction in Jamaica even as a court of original jurisdiction for trade disputes within the Caribbean Community and Common Market (CARICOM).

This is a great set back for the advocates of the CCJ who want a Caribbean Court to replace the British Privy Council as the ultimate court of appeal from the Courts of Jamaica and other countries in the Caribbean.

These advocates regard appeals to the Privy Council as anachronistic; they see the requirement for such appeals as a lingering left-over from colonialism and a mark against the true independence of sovereign Caribbean states.

By the same token, the Privy Council decision is being claimed as a victory for those who hold to the view that the Caribbean legal and judicial system is not yet mature enough to allow for a truly independent court of final appeal that could withstand local pressure and interference from whatever source, particularly governments.

It is important to understand, however, that these were not the arguments that the Privy Council considered. It is equally important to appreciate that the ruling of the Privy Council applies to Jamaica only.

In the case of Barbados, that country’s constitution allowed it to change laws related to the Privy Council on a majority vote of Parliament. Having done so, Barbados has established the CCJ both as the Court of original jurisdiction for trade disputes within CARICOM and as the final court of appeal from the Courts of Barbados. Guyana has done the same.

Jamaica was a different situation. 

The five law lords of the Judicial Committee of the Privy Council who handed down their judgment on 3rd February were keen to point out that what they considered was “whether the procedure adopted in enacting the legislation complied with the requirements laid down in the (Jamaica) constitution”.

On that matter, and that matter alone, they found that the Acts “were not passed in accordance with the procedure required by the Constitution”.

Essentially, the five law lords (actually four men and a woman) found that the three Acts were presented to Parliament collectively and were so inextricably bound up that none could be separated from the other. 

They accepted the argument of Dr Lloyd Barnett that it is “constitutionally objectionable to establish a new court to which appeals from the Court of Appeal would lie when the new court would enjoy none of the entrenched protection afforded by the Constitution to the Supreme Court and the Court of Appeal”. 

They also accepted the argument that “it was no answer to point to the safeguards contained in the CCJ agreement since these enjoyed no constitutional protection in Jamaica and could in any event be amended by agreement of the parties to the Agreement (governments) followed by ratification, both of them executive acts taking effect in Jamaican law on no more than an affirmative resolution”.

The law lords were careful to point out that they have “no interest of (their) own in the outcome” of the case. They declared that they exist as a Board “to serve the interests of the people of Jamaica” and “if and when the people of Jamaica judge that it no longer does so, they are fully entitled to take appropriate steps to bring its role to an end”. Their only concern in the case before them, they said, “is whether the steps taken were constitutionally appropriate”.

They also had no quarrel with the establishment of the CCJ. They said: “The Board has no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious and conscientious endeavour to create a new regional court of high quality and complete independence”.

But, they felt that the three Acts in Jamaica, taken together, required that the procedure to amend an entrenched constitutional provision should have been followed. In other words, the replacement of the Privy Council by the CCJ requires a two-thirds majority of parliament in Jamaica.

Thus, the establishment of the CCJ as a Court of original jurisdiction for disputes within CARICOM died on the vine in Jamaica because it was bound up with the CCJ replacing the Privy Council as the Court of final appeal.

The Jamaican government will, undoubtedly, now have to go back to Parliament to pass a law establishing the CCJ as a Court of original jurisdiction for disputes within CARICOM. This will be very necessary for the operation of the Caribbean Single Market and Economy (CSME). 

But the matter of replacing the Privy Council with the CCJ will have to be postponed in Jamaica until the political parties and other stakeholders in the society are convinced of the safeguards of the CCJ. 

Trinidad and Tobago reached that conclusion in its own Parliament in the first week of February. The government understood well that the opposition would not support the replacement of the Privy Council with the CCJ.

Therefore, it introduced an Act restricting the jurisdiction of the CCJ to interpretation of rules and regulations of the CSME. The Act was passed unanimously but only after a rancorous debate which included one member decrying the absence of anyone of East Indian origin from the panel of judges of the Court.

In time, I am sure there will also be calls for national representation on the Court from those who place ethnic and national considerations over competence and knowledge. For this reason, even now, it might be wise to establish firmly in the rules governing the CCJ that judges should not be selected on any criteria other than sound character, proven competence and established knowledge. 

In any event, the Privy Council remains the final court of appeal for Trinidad and Tobago as it does for the countries of the Organisation of Eastern Caribbean States (OECS) and Belize – all of which would require two-thirds majorities in Parliament and a referendum to replace the Privy Council with the CCJ.

Despite noise to the contrary, the Privy Council decision on Jamaica does not affect the establishment of the CCJ by other CARICOM countries as a Court of original jurisdiction for disputes within the CSME. 

The judgment should also not stop Jamaica from joining Barbados and Trinidad and Tobago from starting off the CSME as planned in mid-February. 

Jamaica can still enact the law restricting the CCJ as the court of original jurisdiction over CSME matters. In doing so, it will be in the same position as all other members of CARICOM except Barbados. Jamaica should not hesitate to do so or it will play into the hands of those elements in Jamaica that would stop deeper regional integration at all costs.

Getting CSME started and getting the CCJ operational are important steps in demonstrating the independence of the CCJ, and in building up confidence in the Court amongst all sections of our CARICOM society.

The problem for the CCJ is that it is now a big Court with several judges and there will not be enough work to keep them fully occupied even if there were a dispute a month amongst CARICOM states.

Nonetheless, the CCJ should proceed as the Court of original jurisdiction; its role as the ultimate court of appeal will come as respect for its work and its independence from interference are firmly established. 

It should be recalled that the Federal Supreme Court during the West Indies Federation was a highly respected body. 

(responses to: ronaldsanders29@hotmail.com) 

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