Privy Council vs CCJ - notes PDF

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The Debate: The Privy Council vs The Caribbean Court of JusticeThe Caribbean Court of Justice (CCJ) was first proposed at the sixth Caribbean Heads of Government Conference in Jamaica in 1970. It was said to be a critical component of the Caribbean Single Market and Economy, a Caribbean response to ...

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The Debate: The Privy Council vs The Caribbean Court of Justice The Caribbean Court of Justice (CCJ) was first proposed at the sixth Caribbean Heads of Government Conference in Jamaica in 1970. It was said to be a critical component of the Caribbean Single Market and Economy, a Caribbean response to the rapid process of globalization. The CCJ was designed as a court with dual (both appellate and original) jurisdiction. In its appellate jurisdiction the court will operate as the highest court to which appeals can be taken from the Caribbean as is currently the case in Barbados, Guyana, Belize and Dominica and the capacity in which the Privy Council now functions for other Caribbean countries). In its original jurisdiction the CCJ will have exclusive jurisdiction to interpret the Revised Treaty of Chaguaramas and will be the sole arbitrator as it relates to disputes between participating states, i.e. countries governed by the treaty. Note that in 2018 both Antigua and Barbuda and Grenada had referenda on the CCJ and both countries voted not to accept the CCJ as their final appellate court. Arguments for the Privy Council/against the CCJ  Good track record- quality judgments –wealth of jurisprudence (it has made decisions in many cases and has thus developed a vast body of legal reasoning )good repute  History- in existence for many years-the court was institutionalized in 1833  Objective an impartial- the court is far removed from the Caribbean and so its decisions are impartial and made solely on the basis of the law.  Risk of political appointment of CCJ judges- small size of Caribbean, friendship and kinship ties- The judges of the Privy Council on the other hand have no such ties with persons in the Caribbean.  Free to litigants- There is a group in England called the London Group whose members work closely with the Independent Jamaica Council for Human Rights. This Group includes persons such as Edward Fitzgerald Q.C. and the members are always willing to represent defendants in death penalty cases free of cost.  Human rights oriented- England abolished the death penalty in the 1950s. In fact all of Europe is has been declared a death penalty free zone. Europe’s foreign policy incorporates recommendations for the abolition of the death penalty.  Well trained, knowledgeable, excellent judges  CCJ will be a financial burden on Caribbean governments- we have to repay the loan borrowed for setting up the court  Poor state of local courts- dilapidated buildings, poor infrastructure, slow- some argue that the money spent on the CCJ would be better spent fixing the problems associated with our local courts.  Foreign investors trust the Privy Council  Issue of time- it has been argued that the CCJ has not been properly debated and we are not ready for it as a final court. There is the suggestion that we should fist try the CCJ as a tier below the Privy Council to see whether it works.  The CCJ could become embroiled in political issues which could weaken its authority

Arguments against the Privy Council/ for the CCJ  Distance- Privy Council is far from the Caribbean therefore access to justice is costly  Because of the distance from the Caribbean Privy Council judges are insensitive to Caribbean conditions- they do not understand the culture, Caribbean realities, jargon, mind set of Caribbean people, context of local crimes etc. They are from confined social circumstances and they admit that they are conservative in their judgments because they know very little about the Caribbean. Lord Hoffman, a judge of the Privy Council, visited Trinidad for the first time in 2004 and Jamaica for the first time in 2009. He stated that he is not qualified to deal with our cases because he does not understand our culture.  Privy Council is not often used because ordinary people cannot afford it. It is mostly used for death penalty and commercial cases. One writer argued that only the richest (companies) and the wickedest (death penalty cases) access the Privy Council. The Privy Council hears 10-15 appeals per year from Jamaica, 15-20 from Trinidad and very few or none at all from other territories.  Retention of the Privy Council is incompatible with sovereignty, independence, decolonization and self-determination. As independent and sovereign countries we should have our own final court. Note however, that sovereignty and independence allows a country to ask another country to decide its cases. It seems then that for us what is affected is not our sovereignty but rather our national pride.  CCJ is needed for the Caribbean Single Market and Economy (CSME)- economic predictability is dependent on the stability of the legal regime-uniform laws are necessary for integration- rulings of the CCJ will serve as binding precedents. The original jurisdiction of the court is needed for the proper functioning of the CSME. Note however that the CCJ has so far only heard three cases in its original jurisdiction- TCL Guyana v Government of Guyana, TCL v The Caribbean Community (both of these cases concerned the application of the Common External tariff (CET) and Doris Johnson v Caribbean Centre for Development Administration (CARICAD)- In this case the CCJ said it had no jurisdiction/authority to hear the case because CARICAD was not an organ of CARICOM.  The CCJ will allow the Caribbean to develop its own jurisprudence and the confidence to make our own final decisions- Caribbean judges are very cautious at present because they know that their judgments can be easily overruled.  CCJ will operate as an itinerant court- the judges will move across the Caribbean and sit in different countries to hear cases from those respective countries.  Psychological considerations- Privy Council is made up of judges who are historically considered superior-psychological remnant of colonialism-breaking free of all colonial ties will allow us to develop more confidence in ourselves to enable us to make our own final decisions. The Privy Council also wants to get rid of appeals from the Caribbean. Lord Phillips (head of the UK Supreme Court)

said that too much of the court’s time (about 50%) is spent dealing with Caribbean cases. He said that there is the need to restructure the arrangements so that the UK Court of Appeal (which is lower than the Privy Council) hears some of the appeals from the Caribbean. This would be a further insult to our Caribbean Court of Appeal judges who already feel insulted by the fact of their judgments being reconsidered by the Privy Council.  Implementation of visa requirements- situations can arise 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 visa  Funding the CCJ One question that has always been raised concerns funding for the CCJ. Through the Caribbean Development Bank participating states have raised the sum of U.S. $100 m. $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. 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. Political Interference and the CCJ The provisions for safeguarding the independence of the CCJ judges are quite similar to the constitutional provisions for protecting judicial independence in the Commonwealth Caribbean.  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.  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.  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.  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.

 Immunity- Judges are immune from criminal or civil liability for anything said or done while operating in the office of a judge. Referendum and the CCJ Groups in civil society have argued that the method being used in Jamaica to implement the CCJ as a final court is contrary to democratic principles and repeatedly called on the government to hold a referendum on abolition of appeals to the Judicial Committee of the Privy Council so that such a decision will be legitimate. They argue that the termination of appeals to the Privy Council amount to abolition of a right previously held by persons and so the views of the people should be sought. The former Jamaican government argued the following:     

A referendum is not required by section 110 of the 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

The Privy Council however, gave full support to the arguments for referendum in the case of Independent Jamaica Council for Human Rights (1998) Ltd & Others V Hon Syringa Marshall Burnett & Attorney General of Jamaica (CCJ Case ) . On September 30, 2004 the Governor General of Jamaica gave his assent to three bills, the broad effect of which was to abolish the right of appeal to the Privy Council and to substitute a right of appeal to a new regional final court of appeal, the CCJ. The question to be decided by the Privy Council was whether the procedure adopted in enacting the legislation complied with the requirements laid down in the Constitution. The court noted that the preamble to the Agreement Establishing the CCJ acknowledges a desire to have the court entrenched in the constitutions of the contracting states. To alter any provision of the Jamaican constitution which is deeply entrenched, section 49 requires that the Bill must be passed in the Upper and Lower House by not less than a 2/3 majority of all the members of each house and the Bill must be approved by the majority of the electorate. Section 49 notes that this process cannot be circumvented by creating a superior court which does not enjoy constitutional protection, that is, creating the CCJ without it being deeply entrenched. If the court is not entrenched there is the risk that the governments of contracting states might amend the CCJ Agreement so as to weaken the independence of the court and erode the protection given to citizens against governmental behaviour. Since the Bills did not follow the correct procedure they were found to be unconstitutional and thus void....