The Privy Council versus the CCJ – A question of conscience? Part 1

rita-josephBy Rita L. Joseph-Olivetti

As the date for Grenada’s constitutional referendum looms, I chose to reflect on the issue of the Judicial Committee of the Privy Council, the JCPC for short, versus the Caribbean Court of Justice, the CCJ, a subject I thought I knew something about.

After all I had been a judge of the Eastern Caribbean Supreme Court, the ECSC, for ten years anaFd a lawyer practising before those courts for what seems like eons before that.

Surprise, on closer examination I realized that I knew precious little about those courts.

So, with ordinary persons without legal training or those who have not had any close encounters with the law and the courts in mind, I scanned the newspapers for help. “Vote your conscience,” screams out at me. My conscience? How does that help?

Neither the CCJ nor the JCPC was engraved in stone on those tablets, writ with the finger of God, which Moses brought back from Mount Sinai.

I need facts about those courts, perhaps some statistics to guide my instincts as well as my hand on 27th October. Remembering what a young man said to me recently, “There is no good reason nowadays to say, ‘I don’t know’,” I looked at some of the literature on both courts that is readily available on the internet. I would like to share some of my basic findings.

What is the Judicial Committee of the Privy Council?

It is the judicial arm of the Privy Council, a British institution dating back to the time of the Norman kings of Britain (1066-1154).

The Privy Council was the main body that governed Britain, advising the sovereign, performing the functions Cabinet does today.

The JCPC was formally established by legislation in England by the Judicial Committee Act 1833.The seat of the JCPC is London, England.

What is the role of the JCPC?

As stated on its website: “The Judicial Committee of the Privy Council (JCPC) is the court of final appeal for the UK overseas territories and Crown dependencies, and for those Commonwealth countries that have retained the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee.”

The JCPC’s motto – that of the Royal Order of the Garter – reads, “Honi Soit Qui Mal Y Pense.” Huh? “Shamed be he who thinks evil of it.”

A Little History:

Prior to Grenada’s independence, the JCPC was, as a matter of course, our final appellate court, Grenada being a British colony.

On attaining independence in February 1974, the right of appeal to the JCPC or to Her Majesty in Council (same thing) was enshrined in our Constitution.

In that, Grenada was not unique, as virtually all of the former British dominions retained the JCPC on attaining their independence.

No doubt it was prudent to do so at the time as the newly independent states had no alternatives.

However, that situation changed as these former colonies grew up and established their own court systems. Examples: India abolished appeals to the JCPC in1947, Canada in 1933 (criminal) and all in 1949, Guyana 1970, Sri Lanka 1972, Gambia 1997, Malaysia 1984, Australia 1986 and New Zealand in 2004.

Grenada has continued with the JCPC to this day, save during the brief reign of the People’s Revolutionary Government, the PRG, from March 1979.

The PRG was forced to establish its own courts, exiting the West Indies Associated States Supreme Court (now the ECSC) and on doing so it abolished the right of appeal to the JCPC by Peoples Law 84 of 1979.

As an aside, at that time, 1979, the Supreme Court headquarters were moved from Grenada to St Lucia where it still resides.

After the demise of the PRG, its successor, the new constitutionally elected government passed a law validating Peoples Law 84. These Acts were challenged in DPP v Andy Mitchell, 1985. However the JCPC held that the validating law was valid and refused to entertain the substantive appeal. Subsequently, Grenada returned to the fold of the ECSC and to the JCPC.

Who are the judges of the JCPC and how are they selected?

Since 1876, the Law Lords (now the UK Supreme Court Justices) have been the permanent judges of the JCPC.

Prior to the establishment of the UK Supreme Court in October 2009, the Law Lords were appointed by the Queen on the advice of the British prime minister, usually from the ranks of the senior Appeal Court judges in each part of the UK. Now, they are appointed by the Queen on the recommendation of the Judicial Appointments Commission.

In addition, all Privy Councillors who hold or have held high judicial office in the United Kingdom, or have been judges of superior courts of certain Commonwealth countries, are eligible to sit if they are under 75 years of age. (Sir Dennis Byron, president of the CCJ, is a Privy Councillor and eligible to sit on the JCPC). In reality these honourary Councillors seldom sit.

The current judges number 11 (although 12 is provided for) – ten men and one woman. They are: Lord Neuberger of Abbotsbury President of The Supreme Court, Lady Hale, Baroness Hale of Richmond, Deputy President of The Supreme Court, Lord Mance, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony, Lord Wilson of Culworth, Lord Sumption; Lord Reed; Lord Carnwath of Notting Hill, CVO; Lord Hughes of Ombersley and Lord Hodge.

Normally a panel of five Law Lords sits on a case and can give dissenting opinions.

Their biographies are posted on the Court’s website. I see two Scotsmen, one Welshman, one Northern Irishman, one Englishwoman and six Englishmen, all seemingly Caucasians, all trained in the UK’s most prestigious universities, all with impeccable backgrounds in the law.

What ties do the JCPC judges have to the Caribbean?

None that I could discern. And, I noted that, in the recent case of Janin v. Wilkinson, from Grenada, heard in June 2016 (a video recording of the hearing is on the website) that the judges appeared not to be aware of Grenada’s geography or our currency.

How is the JCPC Funded?

Very short answer – by the British taxpayers.

(Rita L. Joseph-Olivetti is a retired pusine judge of the Eastern Caribbean Supreme Court, since 2012 after serving ten years. Prior to that she was an attorney-at-law engaged in private practice in Grenada)

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