Privy Council or The Caribbean Court of Justice?

By *Jomo Sanga Thomas

(“Plain Talk” June 9, 2023)

1. What is a final court of appeal?

A final court of appeal is a court which hears appeals against the decisions of other courts, usually described as lower courts, and the decisions cannot be challenged in any other court.

2. How important is a final court of appeal?

A final court of appeal provides not only a final decision on the issues between the parties to the appeal, but it defines the legal principles which govern that case and all similar cases. Thereafter, all citizens and officials must conform with the law as defined by the final court, and other courts must apply the principles as laid down by the final court.

3. How did the Privy Council become our final court of appeal?

The Privy Council owes its origin to the imperial regime in which appeals to The Sovereign from the colonies were referred by him or her to a personal advisory Council then called the Council for Trade and Plantations. By an Act of the English Parliament in 1833, the Judicial Committee of the Privy Council was established to deal with all appeals in legal matters which were submitted from the colonies to the Crown and was thereafter required to be composed of legally trained people authorised to deal with appeals from Commonwealth courts.

4. Why has the Privy Council continued as our final court of appeal?

In our transition from colonial status to Independence, our political leaders gave no consideration to the question of whether we should retain appeals to the Privy Council or not. Although all CARICOM countries supported the establishment of the Caribbean Court of Justice (CCJ) and have consented to the acceptance of its original jurisdiction, only Barbados, Belize, Dominica, Guyana and St Lucia have acceded to the CCJ’s appellate jurisdiction. 

5. How was the CCJ established?

In 2001, the CARICOM countries agreed to a plan for the establishment of a regional court with both original jurisdiction to adjudicate in CARICOM treaty matters and appellate jurisdiction in appeals from the courts of all CARICOM countries.

6. How are Privy Council judges appointed?

The Judicial Committee of the Privy Council comprises justices of the Supreme Court of the United Kingdom, judges of the Court of Appeal of England and Wales, the Inner House of the Court of Session, the Court of Sessions of Scotland or the Court of Appeal of Northern Ireland, and a small number of judges of superior courts of Commonwealth countries. Recently, the English selection process for judges has been substantially reformed and appointments are now made on the advice of a multi-dimensional commission.

7. How are the CCJ judges appointed?

The president of the CCJ is appointed by a majority of the CARICOM heads of State on the recommendation of the Regional Judicial and Legal Services Commission (RJLSC). By virtue of a convention, no such appointment will be made contrary to the recommendation of the RJLSC. The other judges of the CCJ are appointed by the RJLSC. The established rules and practice require widespread advertisement for applicants, short-listing and interviews, consultation with the practising Bar and a consensus in support of the selection among the members of the RJLSC.

8. How has the CCJ performed since its establishment?

The CCJ has established a commendable record of efficiency, expedition, and high quality of judgment. For its high standards it has received international acclaim.

9. Why should we adopt the CCJ as our final court of appeal?

All CARICOM countries contributed to the trust fund, which provides for CCJ’s ongoing maintenance. Their citizens participate in the appointment of judges and serve on the Regional Commission, which appoints the judges and oversees the administration of the court. They are also eligible for appointment as judges of the court itself and have been appointed to the court and its staff.

10. What are the challenges and cost implications of leaving the Privy Council as our final appellate court?

The financing of the CCJ has already been provided (US$100 million). As parties to appeals, whether as a State or individual citizens or corporate bodies, there will be considerable savings in costs, as travel to London, England, for the appellants and their counsel, engagement of English legal agents to handle the filing of documents and other procedural matters, and the costs of hotel accommodation and transportation in London are quite high.

Parties to the appeals and their counsel from some countries have to obtain a visa in order to enter the United Kingdom to attend the hearings at the Privy Council. On the few occasions that the Privy Council travelled to the Caribbean, the costs had to be borne by the host country.

These costs have proven to be unbearable. While electronic hearings have been attempted, it is not only inappropriate in certain cases but is highly inconvenient in the case of the Privy Council because of the great differences in the time zones.

11. What are the challenges and cost implications of adopting the CCJ as our final appellate court?

When the CCJ travels to a participating country to hear appeals, the costs of travel and accommodation are not imposed on the country visited. The cost of travel for parties and other related costs for attendance at the CCJ are considerably lower and the CCJ can more readily hold its sittings in the relevant Caribbean country. For electronic hearings, there is also an absence of the time zone challenges which exist in the case of the Privy Council.

12. Should we have confidence in the Caribbean Court of Justice?

Based on its record, the legal arrangements for its establishment, and the independence of the court, which are internationally recognised as an outstanding model, as well as the quality of its judgments, there is abundant evidence on which we should have confidence in the CCJ.

This piece, with minor edits, was adopted from the Jamaica Observer.

*Jomo Sanga Thomas is a lawyer, journalist, social commentator and a former senator and Speaker of the House of Assembly in St. Vincent and the Grenadines.

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