Privy Council versus the CCJ

by Rita Joseph–Olivetti

As the date for our constitutional referendum looms I chose to reflect on the issue of the Judicial Committee of the Privy Council, the JCPC for short, versus the Caribbean Court of Justice, the CCJ, a subject I thought I knew something about. After all, I had been a judge of the Eastern Caribbean Supreme Court, the ECSC, for 10 years and a lawyer practising before those courts for what seems like aeons before that. Surprise, on closer examination I realised that I knew precious little about those courts.

So, with ordinary persons without legal training or those who have not had any close encounters with the law and the courts in mind, I scanned the newspapers for help. ‘Vote your conscience,’ screams out at me. My conscience? How does that help; neither the CCJ nor the JCPC was engraved in stone on those tablets, writ with the finger of god, that Moses brought back from Mount Sinai.

I need facts about those courts, perhaps some statistics to guide my instincts as well as my hand on [24 November]. Remembering what a young man said to me recently, ‘there is no good reason nowadays to say, “I don’t know”,’ I looked at some of the literature on both courts which are readily available on the internet.

I would like to share some of my basic findings.

What is the Judicial Committee of the Privy Council?

It is the judicial arm of the Privy Council, a British institution dating back to the time of the Norman kings of Britain (1066–1154). The Privy Council was the main body which governed Britain, advising the Sovereign, performing the functions Cabinet does today. The JCPC was formally established by legislation in England by the Judicial Committee Act 1833. The seat of the JCPC is London, England.

What is the role of the JCPC?

As stated on its website:

“The Judicial Committee of the Privy Council (JCPC) is the court of final appeal for the UK overseas territories and Crown dependencies, and for those Commonwealth countries that have retained the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee.’

The JCPC’s motto, that of the Royal Order of the Garter, reads, “Honi soit qui mal y pense.” Huh? “Shamed be he who thinks evil of it.”

A Little History:

Prior to Grenada’s independence, the JCPC was, as a matter of course, our final appellate court, Grenada being a British Colony.

On attaining independence in February 1974, the right of appeal to the JCPC or to Her Majesty in Council (same thing) was enshrined in our Constitution.

In that, Grenada was not unique as virtually all of the former British dominions retained the JCPC on attaining their independence. No doubt it was prudent to do so at the time as the newly independent states had no alternatives.

However, that situation changed as these former colonies grew up and established their own court systems. Examples- India abolished appeals to the JCPC in1947, Canada in 1933 (criminal) and all in 1949, Guyana 1970, Sri Lanka 1972, Gambia 1997, Malaysia 1984, Australia 1986 and New Zealand in 2004. Grenada has continued with the JCPC to this day save during the brief reign of the People’s Revolutionary Government, the PRG from March 1979.

The PRG was forced to establish its own courts, exiting the West Indies Associated States Supreme Court (now the ECSC) and on doing so it abolished the right of appeal to the JCPC by Peoples Law 84 of 1979. As an aside, at that time,1979, the Supreme Court Headquarters were moved from Grenada to St Lucia where it still resides.

After the demise of the PRG, its successor, the new constitutionally elected Government passed a law validating Peoples Law 84. These Acts were challenged in DPP V Andy Mitchell, 1985.However, the JCPC held that the validating law was valid and refused to entertain the substantive appeal. Subsequently, Grenada returned to the fold of the ECSC and to the JCPC.

Who are the judges of the JCPC and how are they selected?

Since 1876, the Law Lords (now the UK Supreme Court Justices) have been the permanent judges of the JCPC.

Prior to the establishment of the UK Supreme Court in October 2009 the Law Lords were appointed by the Queen on the advice of the British prime minister, usually from the ranks of the senior Appeal Court judges in each part of the UK.

Now, they are appointed by the Queen on the recommendation of the Judicial Appointments Commission.

In addition, all Privy Counsellors who hold or have held high judicial office in the United Kingdom, or have been judges of superior courts of certain Commonwealth countries, are eligible to sit if they are under 75 years of age. (Sir Dennis Byron President of the CCJ is a Privy Councillor and eligible to sit on the JCPC). In reality, these honorary Councillors seldom sit.

The current judge’s number 11 (although 12 is provided for) — 10 men and 1 woman. They are: Lord Neuberger of Abbotsbury President of The Supreme Court, Lady Hale, Baroness Hale of Richmond, Deputy President of The Supreme Court, Lord Mance, Lord Kerr of Tonaghmore, Lord Clarke of Stone–cum–Ebony, Lord Wilson of Culworth, Lord Sumption; Lord Reed, Lord Carnwath of Notting Hill, CVO, Lord Hughes of Ombersley and Lord Hodge.

Normally a panel of 5 Law Lords sit on a case and can give dissenting opinions.

Their biographies are posted on the Court’s website. I see 2 Scotsmen, 1 Welshman, 1 Northern Irishman, 1 Englishwoman and 6 Englishmen, all seemingly Caucasians, all trained in the UK’s most prestigious universities, all with impeccable backgrounds in the law.

What ties do the JCPC judges have to the Caribbean?

None that I could discern. And, I noted that in the recent case of Janin v. Wilkinson, from Grenada, heard in June 2016 (a video recording of the hearing is on the website) that the judges appeared not to be aware of Grenada’s geography or our currency.

How is the JCPC Funded?

Very short answer — by the British taxpayers

And now to the Caribbean Court of Justice, what is it?

Since 1970, Jamaica raised the issue of CARICOM having a final appellate court for its members and at long last, the Caribbean Court of Justice, the CCJ, was established by an Agreement among CARICOM states dated 14 February 2001. Initially,10 members, among them Grenada, signed the Agreement and subsequently on 15 February 2003 Dominica and St Vincent & The Grenadines did so. Therefore, of the 15 member states three have still to sign. (What are they waiting for?)

One can easily access the Agreement on the internet. Its preamble bravely declares: “THE CONTRACTING PARTIES, CONVINCED that the Caribbean Court of Justice, (hereinafter referred to as “the Court”), will have a determinative role in the further development of Caribbean jurisprudence through the judicial process; CONVINCED ALSO of the desirability of entrenching the Court in their national Constitutions; AWARE that the establishment of the Court is a further step in the deepening of the regional integration process; RECOGNISING the sovereignty of Members of the Caribbean Community; HEREBY AGREE …” to establish the CCJ.

The intention of the Agreement is that the CCJ would (1) deal with all questions of the interpretation of the Revised Treaty of Chaguaramas (the treaty establishing CARICOM) and (2) be the final appellate court for all states which are signatories to the Agreement and which have adopted the CCJ through the internal machinery of each individual state.

Thus, some 15 years after it signed, this is where Grenada is — trying to honour the Agreement.

On 18 August 2004, the Right Hon. Mr Justice Michael de la Bastide of Trinidad and Tobago was sworn in as the first President of the CCJ.

And on 16 April 2005, the CCJ opened for business at its headquarters, Queen’s Hall (is there a subliminal message here?) Port of Spain, Trinidad. (Incredibly, although the Republic of Trinidad and Tobago seats the CCJ it has not to date accepted the CCJ as its final appellate court. And I wonder at their tardiness).

The CCJ is an itinerant court, that is, it is can sit anywhere in the States which have adopted it and in fact has done so too, Barbados in the Shanique Myrie case, Jamaica, Guyana and Belize. The court can also hear matters via video link without the need for litigants to travel.

Interestingly, for the first time in 170 years, the JCPC sat in the Bahamas in December 2006 for 5 days! And it returned again in 2009. (What prompted this?)

What is the Role of the CCJ?

According to its website:

Our Mission – To protect and promote the rule of law as a court of final appeal and as guardian of the Revised Treaty of Chaguaramas by guaranteeing accessibility, fairness, efficiency and transparency, delivering clear and just decisions in a timely manner.

Our Vision – To be: a leader in providing high quality justice; responsive to the challenges of our diverse communities; innovative, fostering jurisprudence that is reflective of our history, values and traditions, and consistent with international legal norms; (my emphasis) inspirational, worthy of the trust and confidence of the people of the region.

Motto – your people your region your court.

Who are the Current Judges of the CCJ?

The judges number seven. They are The Rt Hon. Sir Charles MD Byron of St Kitts and Nevis, President; the Hon. Mr Justice Rolston Nelson of Trinidad and Tobago; the Hon. Mr Justice Adrian Saunders of St Vincent and the Grenadines; the Hon. Mr Justice David Hayton of the United Kingdom; the Hon. Mr Justice Jacob Wit of the Netherland Antilles; the Hon. Mr Justice Winston Anderson of Jamaica and the Hon. Madame Justice Rajnauth–Lee of Trinidad and Tobago. Usually, a panel of 5 or 3 judges sit on a case and can give dissenting opinions.

Looking at the bench, I see a mix as eclectic as the Caribbean itself, all learned in the law, all with excellent service records, most with strong and enduring ties to the Caribbean.

How are the CCJ Judges selected/elected?

The Agreement provided for a Regional Judicial and Legal Services Commission, the RJLSC, to appoint and remove the judges with the exception of the President. Every effort was made to insulate this body from political influence. It is an eleven-member body with the President of the CCJ as its chairperson. The other members are nominated jointly by the Secretary-General of CARICOM and the Director-General of the OECS and the remaining members come from local and regional bar associations, academia and civil society. And, the pool from which judges can be selected is wide — the Caribbean, the Commonwealth, internationally.

Tenure of Judges

President-appointed, on the recommendation by the RJLSC, by the Heads of three- quarters of the member States. However, the President can only serve for one term of 7 years.

Other judges can serve until the age of 72.

How is the CCJ funded?

The Agreement called for the setting up of a trust fund with contributions from all the Signatories. This was done. The Trust Fund is independently administered. Additionally, each member state has to make an annual contribution based on its public revenue. Presently Grenada’s yearly contribution is US$ 220,000.

You can read all about the Trust Fund in the Agreement itself and even see the report of the fund administrators on the court’s website.

What States have adopted the CCJ as their final appellate court?

They are Barbados, Guyana, Belize and the Commonwealth of Dominica. Jamaica attempted to do so but the Labour Government and certain interest groups challenged the legislation in the case of Independent Jamaica Council for Human Rights Ltd. v S. Marshall–Burnett and the A.G. of Jamaica. And finally, the Privy Council ruled in 2005 that the method employed was unlawful and that to achieve such a change the Government had to have a special majority in both houses of Parliament in favour of the change.

Jamaica is still struggling with the issue as the question continues to be highly polarised. (It appears that some Jamaicans like many of us in the Caribbean remain sceptical of our own abilities, a psyche that, whether we want to recognise it or not, can be traced back to hundreds of years of us being subservient peoples).

The comparative costs to an appellant in both Courts

First the JCPC. A quick query from two reputable firms, one in Grenada, the other in the British Virgin Islands, with recent JCPC experience, leaves me with the figure of approximately EC$200,000. This includes filing fees, retaining English Privy Council agents (Solicitors), English barristers’ fees, airfares, accommodation in London for local counsel for about 3 days.

So, you can determine for yourself how accessible the JCPC is to the ordinary person.

Noted that in criminal cases the costs are not so prohibitive as many English barristers do pro bono work especially where the death penalty is involved.

In terms of time, one can expect an average of a 3–year wait between obtaining leave to appeal (if necessary) and the actual hearing. And an average 6 months for delivery of judgment.

Now the CCJ, there are no figures from Grenada for the obvious reason that Grenada has not yet adopted the CCJ as its final appellate court. However, I did obtain some guidance from a very reputable firm in Belize. I was advised that the costs of accessing the CCJ are considerably less than the JCPC, about two to three times less, making it by my calculation EC$60,000-$100,000. This is not hard to credit. For example, filing fees in the JCPC range from £400–5000 pounds sterling compared to US$60 in the CCJ. The hourly rate for counsel’s fees is about 500US compared to 1000.00 for an English barrister, costs of suitable hotels in Trinidad are much less than in England and so too travel and living expenses.

The time frame from appeal to hearing is about 13 to 18 months and from hearing to judgment about 8 to 10 months

Who uses the JCPC and how often do we have recourse to it? 

Between 2000 and 2016 September, I have noted 11 cases from Grenada to the JCPC — not even a case a year.

It is noteworthy that according to the Annual Reports of the ECSC for 2000-2003, a total of 627 new cases were filed and 874 disposed of. These arose from all 9 member states of the OECS who subscribe to the ECSC.

How many of those cases ever get to the JCPC? Were unsuccessful litigants satisfied with the decision or did they find it too costly to pursue a final right of appeal to the JCPC in London, England? How accessible is justice?

I add here that in his well-researched and comprehensive paper, The Caribbean Court of Justice: A Horizontally and Vertically Comparative Study of the Caribbean’s First Independent and Interdependent Court’, published in the Cornell International Law Journal — Mr Andrew N. Maharaj indicates that because of the aid the CCJ gives to indigent persons that the appeals to the CCJ have increased and cover a much wider range of subjects and issues than those traditionally heard by the CCJ.

Concerns raised — are Caribbean judges corrupt or more prone to corruption than others?

I have heard talk of ineptitude, of bias, of fears of corruption, but I have seen no facts or statistics to ground these rumours. And remarkably the concerns voiced are the same as those voiced by others before they took the brave step to establish their own court. Look at the case of New Zealand for example. The internet provides a wealth of information on these issues and underscores that nothing is new.

Right off, I ask, is this a perception stemming from the fact that historically, whether we wish to acknowledge or not, we are the sons and daughters of slaves, indentured servants, remittance men and women, refugees, sun seekers etc. and that that must translate into our judges being more susceptible to bribery and other forms of corruption? The ECSC manned by Caribbean judges have been in existence for more than forty years and its record is self-evident. Our countries have not descended into the maelstrom.

And are all these bright young lawyers out there, our sons and daughters, educated at UWI, the UK, Canada, the USA, are all of them unfit to be our judges, unfit to sit on the CCJ in the future?

In how many cases did the JCPC determine that the judges were biased, in how many corrupt, leading to prosecution and condemnation?

I return to the books, the websites. My search, doubtless fraught with error, has revealed a handful of cases. The case of the Chief Justice of Trinidad and Tobago, Sharma v. The Deputy Director of Public Prosecutions 2007 comes readily to mind. Here the JCPC upheld the Court of Appeal’s ruling and set aside the Appellant’s application for judicial review of the decision to prosecute him, thus like the Court of Appeal allowing the prosecution to commence. Many years later the State discontinued the Prosecution.

And, there is JCPC’s decision in Georges v Mitchell-St. Vincent and the Grenadines, 18 December 2014. In that case, the Commissioner, a retired High Court Judge, chairing a public inquiry, was challenged on the ground of apparent bias evidenced in his interim report, note not hidden away. That challenge was upheld by the JCPC.

The JCPC found that the Commissioner ‘s interim report was, “replete with strong and colourful language”, and that the Commissioner used, “decisive language of a concluded findings” such that a fair-minded and informed observer would conclude that there was a real possibility that the Commissioner had made up his mind that the appellant was at the heart of the wrongdoing. In other words, that the Commissioner was biased in that he would not approach the remainder of the Inquiry with an open mind.

But I still wonder what is strong and colourful language in a Caribbean context, do the English express themselves in the same way as we do?

And finally the cases decided by the JCPC, for example Boyce v AG of Barbados v Boyce and Joseph, 2006, show that the JCPC will not ignore international norms and obligations and will make full and proper use of the principles of the common law as it has been developed not only by the JCPC but will look at the learning from other common law jurisdictions and so be in a better position to chart our own way forward.

My Final Views

I quote with approval from Mr Andrew N. Maharaj’s well-researched Study, – ‘D. Summary. The Privy Council served as a viable and useful mechanism during the Caribbean’s colonial phase, and even during the infancy of its independent phase. Now, however, CARICOM has provided a more suitable option in the form of the CCJ. Although the court requires Caribbean states to fund and manage their own avenue for appeals, each state gains much from their investment: a regional court with careful checks and balances on its neutrality, a modern and efficient process, reduced costs to litigants, and the creation of a body of Caribbean jurisprudence.”

And Justice Patrick Robinson of the International Court of Justice in The Hague, a national of Jamaica, had this to say in a lecture, “A Triad of Identity Issues: The Enduring Cry for Freedom and Justice”, he delivered in Jamaica last year, “The lawyers and Judges in Jamaica and the Caribbean are well equipped to serve in a final appellate body”. He based this on his research which showed that the JCPC allowed about 30% to 40% of appeals from the Jamaica Court of Appeal, the same ratio as that allowed by the UK Supreme Court from the UK court of Appeal.

The JCPC has served us well in a time when we did not have the resources either monetary or otherwise to establish a court of our own. Now we have. And the duty to fashion our own laws, to guide our people according to our values, our history and our culture must dictate that we establish our own courts, not continue to rely on a foreign court administered by a foreign government who once had us in thrall.

Our children can vote in general elections at age 18. Grenada is 42 years old and has done well by any standards at self-governance. How long will we rely on the seeming generosity of the British taxpayer to lend us their judges? Is this morally right to do and what of our self-respect?

Law forms the backbone of our country; every one of us conducts our affairs according to the dictates of the law as interpreted by a foreign court.

Justice Robinson said, “For Kwame Nkrumah was right when he said “it is far better to be free to govern or misgovern yourself than to be governed by anybody else’.

These are my sentiments too.

An American lecturer once told us, ‘there is no free lunch.’ I think of this phrase every time this debate, JCPC or CCJ rears its head. And now, better informed, I can vote according to my conscience.

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