law 2

• Privy Council


  The English Judicial Committee of the Privy Council, the final Court of Appeal for Commonwealth territories which have retained the appeal to His Majesty
• Privy Council


  • Established as the final court for individual countries during the era of colonialism
  • Exercised final appellate jurisdiction over all colonies and territories
  • Respected as a court of great skill, erudition and versatility
• Decline of the Privy Council's jurisdiction

  1. India gave up the appeal upon achieving independence in 1947

  2. Appeal from Sri Lanka (Ceylon), Africa and Australia gradually wound down

  3. Appeal from Malaysia abolished in 1984

  4. Appeal from Australian States abolished in 1986

  5. Appeal from Singapore abolished in 1994

  6. Appeal from Hong Kong ended in 1997

  7. Appeal from Gambia ended in 1998
• Jurisdiction of the Privy Council


  • Limited, only functions as a Court of Appeal in a very restricted sense
  • Appeals lie at the discretion of the local court in civil proceedings where the matter is of 'great general public importance'
  • For criminal cases, the Council will only intervene if there is a serious miscarriage of justice
  • Bound by precedents established by the House of Lords
• 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 record of accomplishment - quality judgments, wealth of jurisprudence, good repute
  • History - in existence for many years, institutionalized in 1833
  • Objective and impartial - far removed from the Caribbean
  • Risk of political appointment of CCJ judges
  • Free representation for litigants by the London Group
  • Human rights oriented - England abolished death penalty
  • Well trained, knowledgeable, excellent judges
  • CCJ will be a financial burden on Caribbean governments
  • Poor state of local courts
  • Foreign investors trust the Privy Council
  • Issue of time - CCJ not properly debated, should be tried as a tier below the Privy Council first
  • CCJ could become embroiled in political issues
• Caribbean Court of Justice (CCJ)


  • Proposed in 1970, designed as a court with dual (appellate and original) jurisdiction
  • In original jurisdiction, has exclusive jurisdiction to interpret the Revised Treaty of Chaguaramas and sole arbitrator for disputes between participating states
  • Serves as a court of last resort for criminal and civil matters for member nations
• Arguments for the CCJ

  • Completing the cycle of independence - abolishing appeals to the Privy Council and replacing it with the CCJ
  • The time has long passed for Commonwealth Caribbean countries to shed their colonial past and reliance on London-based judges
• Court of last resort

  The last avenue of appeal for criminal and civil matters for those in member nations — currently Barbados, Belize, Dominica and Guyana but with a number of others such as the Bahamas and Jamaica having long signaled an interest in joining
• CCJ


  A better fit for their modern nations than the UK-based Privy Council
• Completing the Cycle of Independence

  • The abolition of appeals to the Privy Council and the replacement of that body by the CCJ will complete the cycle of independence of the countries of the Commonwealth Caribbean
  • The time has now long past when we should have shed ourselves of our colonial past and the reliance upon Judges based in London to decide matters coming before our Courts
• Mr. Justice Duke Pollard: 'The genesis of the jurisdiction of the Judicial Committee of the Privy Council is traceable to the inordinate degree of arrogance associated with the disposition of royal power in the middle ages. The Judicial Committee of the Privy Council was perceived as an indispensable attribute of empire and the judicial symbol of colonialism.'
• Psychological considerations


  • 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
• Greater Access to Justice

  • The replacement of the Privy Council by the CCJ as the final Appellate Court will provide citizens of the Commonwealth Caribbean countries with much greater access to justice at a much reduced cost
• Intellectual Capacity of the CCJ Judges and Conduct of Hearings

  • The intellectual capacity of the Judges in the CCJ compares very favourably with Judges in any jurisdiction in the world
  • The CCJ conducts its proceedings with the dignity and courtesy which is befitting a final Appellate Court
• Privy Council Insensitivity to Caribbean Conditions

  • 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
  • They are from confined social circumstances and they admit that they are conservative in their judgments because they know very little about the Caribbean
• Privy Council Usage


  • The Privy Council is not often used because ordinary people cannot afford it
  • It is mostly used for death penalty and commercial cases
  • The Privy Council hears 10-15 appeals per year from Jamaica, 15 from Trinidad and very few or none at all from other territories
• Developing Caribbean Jurisprudence


  • 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 as an Itinerant Court

  • The CCJ judges will move across the Caribbean and sit in different countries to hear cases from those respective countries
• Arguments for Referendum


  • 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
  • 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
• Arguments against Referendum


  • 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
  • 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 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)
• Privy Council Ruling on Referendum

  • 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