Justice system – The Caribbean Court of Justice versus the Privy Council
GOAL:
For students to gain an understanding of how the justice system impacts the lives of Caribbean people.
SYLLABUS SPECIFIC OBJECTIVE:
1. Evaluate the ways in which societal institutions impact on people’s lives. Objectives: 2. Assess the arguments put forward for and against the adoption the CCJ as the final appellate court for Commonwealth countries.
There has been an ongoing debate surrounding whether Jamaica should adopt the CCJ as its final court of appeal or remain with the Privy Council (PC). The Judicial Committee of the Privy Council is primarily the final Court of Appeal for those Commonwealth territories which have retained the appeal to Her 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. 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. In particular, the Court intervened in cases pertaining to property such as plantations. By the end of the 19th 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.
As the era of colonialism came to an end, a number of countries gave up the Privy Council as their final Court of Appeal. 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. For the past decade or so, there has been a move to dissolve the Priviy Council as the Caribbean’s Final Court of Appeal and adopt what is known as the CCJ. The institutionalisation of the CCJ assumes political, economic, nationalistic and even emotional overtones and is inextricably bound up with the issues of independence and sovereignty. The nations of the Caribbean are now becoming increasingly of the opinion that it is offensive to the sovereignty of independent nations and, therefore, politically unacceptable to have a foreign tribunal permanently entrenched in their constitutions as their final court.
ARGUMENTS OF FOR THE CCJ
1. When Caribbean countries adopt the CCJ as the final appellate court, they complete the process of the independence of Commonwealth countries. Most Caribbean counties have been independent of England for over 40 years. The time has now come where these countries must sever the ties to their colonial past and reliance on London judges to decide on the matters coming before our courts.
2. The adoption of the CCJ will allow people of the Caribbean 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 Privy Council are extremely expensive, and that factor operates as a deterrent to presenting an appeal before that body.
3. Caribbean judges’ intellectual competence is unquestionable when compared to judges in other jurisdictions in the world. Their 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.
ARGUMENTS AGAINST THE CARIBBEAN COURT OF JUSTICE
1. The main opponents to the adoption of the CCJ question the trust and confidence of the judges in their judgements. The skepticisms are relaxed around the believe that in the small society in which we operate, some judges may be reluctant to offend some politicians who hold the reins of government.
2. The argument of lack of respect for the ruling passed down by Caribbean Judges as seen in 2009 case where the CCJ granted a mandatory order against the Government of Guyana, directing it to implement the Common External Tariff (CET) which it had arbitrarily lifted without lawful authority. The Government of Guyana has refused to pay the costs of the proceedings assessed by the Court.
3. Another fundamental issue regarding trust and confidence, when one is comparing the CCJ and the Privy Council, relates to the judicial knowledge of local conditions, the parties, and the lawyers involved in any particular case. It is commonly said that one negative about retention of the PC is that the judges in London are far removed from the local circumstances and local conditions and have little or no knowledge of same.
ACTIVITY
Should the CCJ replace the PC as Jamaica’s final Court of Appeal?
Should this be decided by a referendum? Jason McIntosh teaches at The Queen’s School. Send questions and comments to kerry-ann.hepburn@gleanerjm.com