“CARICOM has created a novel hybridized court of appellate and original jurisdiction in the CCJ and, as a result, it faces novel issues.”

[Andrew N Maharajh]

Underwood Talent Development Services Inc (UTDS) is pleased to partner with Justin Simon QC, former Attorney General of Antigua and Barbuda and advocate for the CCJ, to present a five-part series on the history of the Privy Council and the rationale for the design and adoption of the Caribbean Court of Justice (CCJ) in its appellate jurisdiction.  While Justin is an unabashed advocate for the CCJ, the information presented in the series is geared towards assisting readers throughout the Caribbean and the diaspora in arriving at an informed position relative to our adoption of the CCJ. Throughout the series, UTDS will supplement and complement Justin’s input with links to other research and opinion pieces.

This issue is of major import and impact to Caribbean jurisprudence and self-determination. We invite you to follow the entire series and to actively apply your minds and hearts to the examination of this issue and ultimately to the formulation of your personal opinion on the matter.

Finally, UTDS wishes to thank former AG Simon for this contribution which we are confident will serve to expand and elevate the ongoing discourse in Antigua and Barbuda, the Region and amongst Caribbean people wherever they reside.

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THE PRIVY COUNCIL HAS SERVED US WELL, BUT . . . .

By Memorandum of Understanding dated July 29, 2015 the Government and the Official Opposition of Antigua and Barbuda agreed to work together towards introducing constitutional reform which would necessitate final approval by the people by way of referendum. One of the changes proposed is delinking with the Privy Council as our final court of appeal, and acceding to the appeal jurisdiction of the Caribbean Court of Justice (the CCJ). I am fully supportive of that change, but I think that public education is necessary to allow for an informed decision by the electorate when the time comes. Through this medium and in a series of five articles, I wish to share some information and my thoughts with members of the public. What follows is the first article, and is sub-titled:

From Whence the Privy Council

In the Middle Ages the judicial authority of the King in Parliament in England was not exclusive; it was shared by a Privy Council, which consisted of advisers to the Monarch and personally chosen by him. From earliest times, therefore, the Privy Council possessed executive, legislative, and judicial powers. Over time, its civil judicial power was absorbed by the Court of Chancery, and as a criminal court it became the Star Chamber. When that infamous tribunal was abolished during the reign of Charles I (1625 – 1649), the Privy Council was left with its appellate functions in respect only of the overseas territories conquered by, ceded to, or settled in the name of the Crown [never “discovered”], and its jurisdiction became wider and wider in the eighteenth and nineteenth century with the growth and expansion of the British Empire.

Until the abolition of slavery in 1833, the majority of inhabitants in the British colonies were considered as “chattel” or property and had no legal rights whatsoever. The Privy Council then, could be described as a vehicle of oppression against the majority who were of African descent as it reinforced the legal rights of the English planter class. At abolition, according to the late Dr. Eric Williams in his book “From Columbus to Castro”, the British West Indies boasted 540,559 slaves with Antigua having the fourth largest number: 23,350 – after Jamaica, British Guiana, and Barbados.

Until the Judicial Committee Act of 1833, the members of the Committee of the Privy Council which heard appeals were not required, as a matter of law, to possess any judicial qualification. By 1887, all members had to hold or have held high judicial office in the United Kingdom, such as a Lord Justice of Appeal, or a judge of a superior Court. In time, as the former English territories were granted independence, persons who held the judicial office of Chief Justice in Canada, Australia, India, and the Caribbean (notably Sir Hugh Wooding of Trinidad and Tobago, and Sir Vincent Floissac of Saint Lucia) could be made Privy Councillors by Royal Decree, and as such become members of the Judicial Committee of the Privy Council. That Committee became, by constitutional provisions, the ultimate appellate Court for many Commonwealth countries before and, in many cases, post independence; its jurisdiction (meaning, judicial power and authority) never extended to the United Kingdom.

The Judicial Committee of the Privy Council, it has been said, and rightly so, is not an English body in any exclusive sense. The Sovereign was Head of State throughout the Commonwealth, and as such the Committee may sit in any Commonwealth country in which it has jurisdiction; it is only for convenience that it sits in England, but I know of only one other country that it has sat, and that is, the Bahamas twice in the last six years. In the court case of British Coal Corporation v. R [1935], the Judicial Committee explained that what takes place in London is only one small step in a composite procedure which starts and finishes in the Courts of the country from which the appeal is brought; and that an appeal to the Privy Council is in fact an “appeal to an Imperial, not a merely British, tribunal”.

Lloyd G. Barnett, O.J, S.C. of the Jamaica Bar in addressing a CCJ Conference recently held in Jamaica opined thus: “It is therefore surprising that against this historical background, when the former British colonies of the Caribbean emerged from their colonial status they elected to retain the Privy Council as their final appellate court. While it is true that in the last century, the Privy Council in its reformed judicial manifestation has provided high quality judicial service to the Caribbean members of the Commonwealth, it is remarkable that unlike the vast majority of former colonies, having less historical justification, we have to a large extent insisted on clinging to its overreaching jurisdiction”.

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It is now 800 years since the proclamation of Magna Carta in England (which spoke to the right to justice), 350 years since its adoption by whites solely for whites in the Caribbean, 279 years since Prince Klaas attempted a slave rebellion and was hanged, 182 years after the abolition of slavery, 100 years after The Daily Gleaner of Jamaica called for the establishment of a regional final court of appeal, 48 years since the establishment of the Eastern Caribbean Supreme Court following the breakup of the West Indies Federation, 40 years since the Jamaican Delegation to a CARICOM Heads of Government Conference tabled a proposal for the establishment of a regional final Court of Appeal, and almost 34 years since our Independence. Now, in September 2015, we begin the debate in earnest as we prepare ourselves for the constitutionally-required referendum, and 14 years after the first real step was taken to establish the CCJ.

In February 2001, 10 Caribbean States, including Antigua and Barbuda, signed the Agreement for the establishment of the Caribbean Court of Justice. They all declared in the Preamble to that Agreement that they were:

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;”

It is quite true that Caribbean governments do not have to contribute financially to the establishment costs of the Privy Council.

But one must bear in mind the old adage that you should not look a gift horse in the mouth.Of course that is not to say that if you continue to place your hand in its mouth, it may just close on you when you least expect. Take due note of the following.

Writing in The Law Quarterly Review, Vol. 129 at page 169, John Jeremie, Head of the Faculty of Law, UWI, St. Augustine Campus, and a former Attorney General of Trinidad and Tobago wrote:

On September 21, 2009 the Financial Times published remarks of Lord Phillips of Worth Matravers, then newly appointed first President of the Supreme Court of England and Wales, in which he is reported to have said that he was searching for ways to curb the disproportionate amount of time the Privy Council dedicates to hearing Appeals from the Caribbean. Lord Phillips was reported to have questioned whether some Privy Council cases  which have ranged from Jamaican death row appeals to fights over press freedom in Bermuda  need to be heard by a panel of five of Britain’s most senior judges. [In fact Bermuda, as we all know, is not a Caribbean territory and remains to this day, a British Overseas Territory]

In its comment on the interview, the London Financial Times described the Privy Council as a creature of Britain’s nineteenth century colonial pomp.The writers did not in fact stop there. They turned their attention to the newly created Supreme Court of the United Kingdom (which reformed the existing court structure) describing it as quintessentially British constitutional fudge, separating the judiciary from Parliament for the first time but leaving intact a sister chamber [the Privy Council, ofcourse] widely seen as a post-imperial anachronism.

Subsequently on September 24, 2009, the BBC, reflecting on the Financial Times piece, described as a minor public scandal the fact that Britain’s top judges are required to spend virtually half of their time hearing overseas appeals largely from the Caribbean, on business of no interest to anyone in the United Kingdom.

So much for the views expressed by the home-base and the financial paymasters of the Privy Council. Are we not getting the message loud and clear? A word to the wise, I have been told, is sufficient.

My second article will address and highlight the salient judicial decisions of the Privy Council, mainly within our jurisdiction in recent times, and it’s favorable impact on the development of our jurisprudence, which has given cause for our continuing vocal support.

Author: Justin L. Simon, QC