Tuesday February 9th, 2010
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Judging the Caribbean Court
Published: 22 Aug 2009
Since its inauguration on April 16, 2005, at the Queen’s Hall in Port-of-Spain, the Caribbean Court of Justice (CCJ) has had a fairly rough ride. The CCJ was established with two functions: an appellate function in which the court was meant to replace the Judicial Committee of the Privy Council and an original function in respect of the interpretation and application of the Treaty of Chaguaramas which established the Caribbean Community. So far, only two of the 15 members of Caricom, Barbados and Guyana, have done what is necessary to establish the CCJ as the final court of appeal for those countries. In other Caricom countries this small step, which will mean the abolition of the Judicial Committee of the Privy Council, has been impossible to achieve either because of illogical political opposition or selfish self-interest.
An example of the illogicality of the political opposition comes from this country where Basdeo Panday, who when serving as Prime Minister on February 14, 2001, signed the agreement establishing the CCJ, ratified the agreement and successfully lobbied for the seat of the court to be located in T&T. In opposition for the last eight years, however, Mr Panday has refused to support the amendment to the T&T Constitution to allow for the abolition of the Privy Council and the establishment of the CCJ as the final court of appeal for T&T. This can only be achieved by a special majority because the establishment of the Privy Council is one of the entrenched provisions in the T&T Constitution. Like T&T, most Caricom countries require a special parliamentary majority to facilitate the abolition of the Privy Council and the establishment of the CCJ. But even Caricom countries which do not require special majorities face major hurdles.
In February 2005, the Privy Council ruled that three Jamaican Acts abolishing appeals to the Privy Council and establishing the CCJ as Jamaica’s final court of appeal were unconstitutional because they were not passed in accordance with the procedures laid down in the Jamaican Constitution for the amendment of its entrenched provisions. This ruling by the Privy Council on its own jurisdiction over Jamaica came despite the fact that the provision in the Jamaica Constitution dealing with appeals to the Privy Council was not entrenched and therefore did not require a special majority. But then the Privy Council, which has a special place in the hearts of many regional lawyers, is not always known for its logical interpretations of regional laws—as shown in the Pratt and Morgan and the Muslimeen amnesty cases.
In the 2005 judgment on the abolition of the Privy Council, the body also expressly stated that it, sitting as the final Jamaican court of appeal, had no interest of its own in the outcome of the appeal—a most astonishingly self-interested statement. Fortunately for the region, the CCJ has shown in two recent rulings involving its original jurisdiction that it is maturing very quickly into a court that will soon be renowned for its fairness and even-handedness. In cases involving the application of the Common External Tariff (CET), the CCJ has shown a remarkable ability to interpret the Caricom rules in a way that has allowed all parties to the legal conflicts—TCL, Jamaica, Guyana and Caricom itself—to walk away from the judgments claiming some measure of satisfaction.
Maybe in its development of a regional jurisprudence, the CCJ has something to teach the Privy Council. By its decisions in these two cases the CCJ has set out in clear and logical language, with full adherence to the established precedents and the applicable laws, the proper procedures for countries to follow if they wish to amend the CET. These high-quality judgments should give confidence to parliamentarians across the region that the CCJ can be trusted to chart our legal destiny and that the time may finally have come to end the sovereignty of the English courts. But will the parliamentarians be moved by what the CCJ has demonstrated by these judgments?
This editorial is
This editorial is unbelievable. The language used suggests a serious lack of understanding for the nature of the Privy Council and what a Constitution is. There are gaps in some of the issues, which are likely to promote anti-Privy-Council sentiments mouthed by many politicians in T&T.
"This ruling by the Privy Council on its own jurisdiction over Jamaica came despite the fact that the provision in the Jamaica Constitution dealing with appeals to the Privy Council was not entrenched and therefore did not require a special majority."
The editorial fails to quote the judgment of Jamaica's Highest Constitutional Court (i.e. the Privy Council), which explains a seeming anomaly above. The Law Lords said " But an important function of a constitution is to give protection against governmental misbehaviour, and the three Acts give rise to a risk which did not exist in the same way before. The Board is driven to conclude that the three Acts, taken together, do have the effect of undermining the protection given to the people of Jamaica by entrenched provisions of Chapter VII of the Constitution. From this it follows that the procedure appropriate for amendment of an entrenched provision should have been followed." - and that is the crux of their reason - which is golden! [However, study of the entire text of the judgment is required to fully appreciate the Court's conclusion. http://www.mediafire.com/?jmwciqgzdvn ]
"But then the Privy Council, which has a special place in the hearts of many regional lawyers, is not always known for its logical interpretations of regional laws—as shown in the Pratt and Morgan and the Muslimeen amnesty cases."
Poppycock. The Editorial seems to use Pratt & Morgan and a Muslimeen case, as examples of a lack of logical interpretation. Not because one does not understand or appreciate the logic used, means that the logic is wrong. This is how lay persons and even politicians in high places come to very wrong conclusions. The authors of the editorial perhaps lack appreciation for the foundations of legal reasoning.
" In the 2005 judgment on the abolition of the Privy Council, the body also expressly stated that it, sitting as the final Jamaican court of appeal, had no interest of its own in the outcome of the appeal—a most astonishingly self-interested statement."
"Body"? What strange terminology to apply to the country's highest court. Does anybody refer to a court as a 'body' - never heard of it. There was nothing of self-interest in the statement. The Court was simply clarifying its position. The Editorial fails to quote the Privy Council's statements that followed i.e. "The Board exists in this capacity to serve the interests of the people of Jamaica. If and when the people of Jamaica judge that it no longer does so, they are fully entitled to take appropriate steps to bring its role to an end. The question is whether the steps taken in this case were, constitutionally, appropriate." - There is nothing of self-interest there. The Editorial is a victim of its own imagination.
"These high-quality judgments should give confidence to parliamentarians across the region that the CCJ can be trusted to chart our legal destiny and that the time may finally have come to end the sovereignty of the English courts." This is even more confused. The "English Courts" have no sovereign position over people in the Caribbean or those in T&T. In the Jamaican case above the Privy Council said " Thus the Constitution and not, as in the United Kingdom, Parliament is (save in respect of Chapter III of the Constitution) to be sovereign. "
The Privy Council is a Court (not merely a 'body') sitting in England, that is appropriately the highest court for certain sovereign Nations in the Caribbean. The English Law Lords were clear that [paraphrasing here] when the time was right, and the processes required by the various Constitutions were followed to effect change, that it (the Privy Council) should cease to be the highest Court. The matter has nothing to do with how good the CCJ is or might be in the future. This is a matter of Constitutional Law and cannot be won on a simplistic argument about merit.
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