The Privy Council vs Caribbean

Court of Justice (CCJ) Debate.

LECTURER: DR. AIEKA SMITH
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FD13A

Dr. Aieka Smith

Lecture 3

OUTLINE
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This lecture will primarily focus on :

Commonwealth countries that withdrew from the
Privy Council
The CCJ (establishment, jurisdictions, composition,
members, funding)
The Privy Council vs CCJ debate

Dr. Aieka Smith

Lecture 3

Countries that withdrew from the Privy Council

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Canada 1949
Guyana 1966

Hong Kong 1997

India 1949
Pakistan 1950
Singapore 1994
Barbados 2005
Belize 2011

New Zealand 2004

Dr. Aieka Smith

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Judges of the CCJ

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Dr. Aieka Smith

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CCJ: Background
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The CCJ :
Was first proposed at the sixth Caribbean Heads of
Government Conference in Jamaica in 1970.
Is set to function as the Caribbeans regional final
court of appeal.
Was established in 2001 to replace the Londonbased Privy Council as the region's final court.

Dr. Aieka Smith

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CCJ: JURISDICTIONS
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The Court has dual jurisdictions:

Original jurisdiction and an Appellate jurisdiction

Original jurisdiction:
The court will regulate trade relationships between the member states
of CARICOM. It will be the sole interpreter of the Revised Treaty
Chaguaramas which establishes CARICOM and will be the sole
arbitrator as it relates to disputes between participating states, i.e.
countries governed by this treaty.

1.

2. Appellate jurisdiction.
In its appellate jurisdiction the court will be the final court to
which an individual can appeal an unsatisfactory judgment.

Dr. Aieka Smith

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Countries that are full members of the CCJ

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Only three countries (Barbados, Guyana &

Belize) are full members of the CCJ established in

2001 to replace the London-based Privy Council as
the regions final court of appeal.

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CCJ: Trinidad& Tobagos intentions(April 2012)

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Trinidad & Tobago proposed a phased withdrawal

from the Privy Council.

It intends to introduce legislation to abolish appeals
to the Privy Council in all criminal matters.
Privy Council- civil and constitutional matters
CCJ- Criminal matters

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CCJ: Dominica to become full member

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In January 2014 Dominica received Britains

approval to make the CCJ its final court of appeal.

(See,http://www.jamaicaobserver.com/news/Dominica-gets-nod-toadopt-CCJ-as-final-appellate-court_15873118. See
also,http://www.jamaicaobserver.com/latestnews/Dominica-tobecome-full-CCJ-member)

Dr. Aieka Smith

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Arguments in support of the Privy Council

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Good track record-good quality judgments- good repute.

History- in existence for many years-institutionalized in 1833.
Objective- far removed from the Caribbean and so decisions are deemed to

be impartial and based solely on the law.

Free to litigants- eg., a group of lawyers called the London Group are

always willing to represent accused persons in death penalty cases.

Human rights oriented- England abolished the death penalty in the 1950s-

Europe has been declared a death penalty free zone. Europes foreign policy
incorporates recommendations for the abolition of the death penalty.

Dr. Aieka Smith

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Arguments in support of the Privy Council contd.

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Fear that CCJ judges will be politically appointed

CCJ will be a financial burden on Caribbean governments.
Issue of time- the CCJ has not been properly debated-we are not ready for

the CCJ as a final court-we should try the CCJ as a tier below the Privy
Council to see if it works

Poor state of national courts (poor infrastructure, lack of speed and

efficiency, heavy backlog of cases) shows that we will not be able to handle
a regional court.

CCJ could become embroiled in political issues which could weaken its

authority.

Foreign investors trust the Privy Council.

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Arguments against the Privy Council

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Incompatible with Caribbean sovereignty &

independence.

Judges of the Privy Council are insensitive to local

conditions.
Dual jurisdiction of the Caribbean Court of Justiceeconomic predictability is dependent on the stability of
the legal regime-uniform laws are necessary for
integration.

Dr. Aieka Smith

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Arguments against the Privy Council

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The Privy Council does not hear many cases from the Caribbean each

year- most of the cases heard are death penalty cases and cases
concerning companies- a former Attorney General for Jamaica
commented that only the wickedest and the richest appear before the
Privy Council.

It is expensive to access the Privy Council but the CCJ will be itinerant

and thus more readily accessible. The CCJ will operate as an itinerant
court,ie. the judges will move across the Caribbean and sit in different
countries to hear cases from those respective countries.

The CCJ will allow the Caribbean to develop its own jurisprudence.

Dr. Aieka Smith

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Arguments against the Privy Council

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Members of the Caribbean judiciary feel that it is an

insult to have their judgments scrutinized by English

judges- suggest that English judges are viewed as
superior- psychological remnant of colonialism

The Privy Council wants to get rid of appeals form the

Caribbean.

Visa requirement- situations can occur and have in fact

arisen where a person has a case before the Privy Council

and wants to represent himself but cannot appear
because he does not have a UK visa.
.
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Loosening the ties to Britain

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Lord L. Hoffman, in an address to the annual dinner

of the Law Association of Trinidad and Tobago in

October 2003, encouraged the Caribbean to
establish its own court of final appeal.
He explained: I do not underestimate the difficulty of creating a
final court for the various Caribbean communities. But I think
that states which have so much in common in their history
and values, which can even play cricket together, should be
able to do so.
He further highlighted that: We in London will do what we
can to help, as we would, if in the end you decided to continue
the present system. But my own view is that a court of your
own is necessary if you are going to have the full benefit of
what a final court can do to transform society in partnership
with the other two branches of government.
Dr. Aieka Smith

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Loosening the ties to Britain contd

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Lord Nicholas Phillips (former President of the

Supreme Court in the UK) in 2009 argued that:
A disproportionate amount of time was spent on
cases from the Commonwealth Caribbean,
Caribbean countries should establish their own
appellate court.

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Loosening the ties to Britain contd

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Lord Browne-Wilkinson (former President of the

Privy Council) pointed out that:
Appeals from Caribbean courts to the Privy Council
should be scrapped.

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CCJ: Funding Arrangements

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*Through the Caribbean Development Bank (CDB)

participating states have raised the sum of U.S. $100
m to fund the CCJ. Of this amount $12m was used
for setting up the court.
*The remaining $88m was placed in a CCJ Trust Fund
presided over by a board of Trustees.

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CCJ: Funding Arrangements contd

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* Annual costs of the court are to be funded by interest

accruing to the trust fund and the principal is to be
held in investments to ensure viability of the court.
* Each country will repay a stated portion of the
$100m.
*If a state defaults on repayment the CDB has the right
to call in all loans given to that state, so states are
legally obliged to pay.
(See, http://www.jamaicaobserver.com/columns/The-catastrophe--warning-on-CCJ_8576237)
Dr. Aieka Smith

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CCJ: Issues of Political Interference

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The provisions for safeguarding the independence of the CCJ

judges are almost identical to the constitutional provisions for
protecting judicial independence in the Commonwealth
Caribbean (as outlined in your lecture on the hierarchy of
courts).
1.Appointment of judges- There is an independent appointment
process. The President of the CCJ is appointed by the Heads
of Government of the participating states. The other judges
are appointed by the Regional Judicial and Legal Services
Commission. Judges can be appointed from any
Commonwealth country.

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CCJ: Issues of Political Interference contd

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2.Security of tenure- Judges hold office until age 70.

The office of a judge cannot be abolished while there
is a judge holding that office (judges cannot be made
redundant). A judge can continue in office after age
70 (with permission) in order to complete cases.
3. Remuneration- Judges are paid from the Trust
Fund. The salary of a judge cannot be reduced while
he/she holds office. Judges are also entitled to
benefits of the office.

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CCJ: Issues of Political Interference

contd
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4.Termination- judges can only be removed from office

before retirement for cause which includes
misconduct or inability to carry out the functions of
office due to illness (physical or mental) or other
inability.
5. Immunity- Judges are immune from criminal or
civil liability for anything said or done while
operating in the office of a judge.

Dr. Aieka Smith

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Referendum & the CCJ

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Several civil society groups such as the Jamaicans

for Justice (JFJ) have urged that the method being

used in Jamaica to implement the CCJ as a final
court is contrary to democratic principles and have
called on the government to hold a referendum on
abolition of appeals to the Privy Council so that such
a decision will be legitimate.
They argue that the abolition of appeals to the Privy
Council is a sensitive issue warranting the views of
the people/citizens of Jamaica.
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Referendum & the CCJ

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Delroy Chuck of the Jamaica Labour Party (at the time

the party's spokesperson on justice and national
security):
--It is the parliamentary Opposition's considered
opinion that a matter such as this is of such grave
and exceptional national importance that it
requires consultation with the people of Jamaica.
June 27,2012
(See, http://www.jamaicaobserver.com/news/Oppositioninsists-on-CCJ-referendum_11823877 )
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Referendum & the CCJ *

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The Peoples National Party (PNP) in Jamaica argued the

following:
A referendum is not required by Section 110 of the Jamaican

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.
In general elections the populace got a chance to indicate by their vote
whether or not they wanted the CCJ
A referendum is costly
A referendum would cause further divisions along political lines.
Other countries such as New Zealand abolished appeals to the Privy
Council without the use of a referendum
(See, http://jamaica-gleaner.com/gleaner/20120910/lead/lead7.html;
http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/
18912; )

Dr. Aieka Smith

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In your tutorials you should examine:

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The arrangements for funding the CCJ- loan of US$100 million loaned through
the Caribbean Development Bank.- US$12 million spent to set up the courtremaining US$88 million held in a trust fund- to be invested in low risk
investments and the interest earned to be used for the recurring expensescountries responsible for repaying predetermined portions of the loan- if a state
defaults the CDB reserves the right to call in all outstanding loans for that state

Whether the court will be open to political interference- there are safeguards in
the CCJ Agreement aimed at preventing this- provisions concerning
appointment, tenure, remuneration and termination of judges and their
immunity from suit

Referenda and the CCJ- read the case of Independent Jamaica Council and
Others v Hon Syringa Marshall Burnett and the Attorney General of Jamaica
(CCJ Case).

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Discussion

Dr. Aieka Smith

Lecture 3