The remaining two Bills required for the establishment of the controversial Caribbean Court of Justice (CCJ) as Jamaica's final court of appeal were passed in the Senate on Friday July 2 during a marathon eight-hour session at Gordon House. The debate on what has been a thorny issue - the establishment of the CCJ and the abolition of appeals to Her Majesty in Council was opened by A. J. Nicholson, Attorney-General and Minister of Justice on July 1. We continue the debate with excerpts from Mr. Nicholson's presentation with further discussions on Page B12.AT THE time when the Privy Council was given structure and form by the British Crown, that court was established as a court for the 'colonies and plantations'. During the colonial period, therefore, the Privy Council served as part of the apparatus of the system of Government and law and order throughout disparate parts of the world. But, it was more than that: it was part of the so-called bond of union that held different colonial communities under the notion of Pax Britannica.
We do not for one moment mean to suggest that we should take umbrage from the fact that the Privy Council was originally a colonial court, or that its jurisdiction once included 'plantations' with all sorts of negative connotations; that is a part of historical reality. I do wish to suggest, however, that upon the passing of Pax Britannica, or more narrowly, upon the independence of each of the countries that were part of the British imperial construction, it would be fair to expect the newly independent States to consider severing the umbilical cord of the Privy Council.
Indeed, throughout much of the world, former colonies have considered severing that cord, and have moved beyond that to the complete discontinuance of appeals to the Privy Council. Thus, the process of constitutional decolonisation in India, throughout most of Africa, and in the former Dominions, has been accompanied by the abolition of appeals to the former colonial court in London. For the countries taking this path, it almost goes without saying that considerations of sovereignty or national pride, together with principles of self-determination, have been decisive. The result is that from the decade of the 1960s, the Privy Council was described as a "waning jurisdiction".
As Professor Vasciannie has written: "In light of historical changes, the Privy Council was perceived by many supporters of principled anti-colonialism as a vestigial structure at best, and an unnecessary reminder of crude notions of British superiority at worst". I fall into neither category; none of us on this side does. Today, however, I hardly need to remind the Senate that the vast majority of former colonies have followed the dictates of self-determination, so that, other than Commonwealth Caribbean countries, the only independent states that remain within the Privy Council appellate structure are Brunei, Tuvalu, Kiribati (for a limited set of issues) and Mauritius.
DEVELOPMENTS AFTER 1962
At the time of our independence in 1962, a number of pragmatic considerations encouraged us to retain appeals to the Judicial Committee, notwithstanding the Court's prominent role in colonial affairs. Among other things, the resource constraints that Jamaica faced as a small country just about to embark on independence meant that we regarded the continuation of appeals to the Privy Council as a form of post-imperial assistance. In this way, we continued to benefit from the undoubted tradition of justice associated with the Privy Council and our gratitude to the Government and people of the United Kingdom, over time, is unbounded.
Substituting that Court with the Caribbean Court of Justice after over four decades of Independence is not to be seen as any diminution of that immeasurable appreciation. Indeed, that very court of venerable standing is to be asked to deliberate once again upon whether one of the former colonies of the realm is embarking upon the proper constitutional course as we seek, finally, to sever our links with that institution and to subscribe to another final court of appeal.
The Parliamentarians at Westminster in 1833 and 1844 could never have foreseen such an eventuality. Perhaps that is how it was destined to be.
... Madame President, the Bill now before this House, on this the 1st day of July, 2004, is the Caribbean Court of Justice (Constitutional Amendment) Bill, one of three companion measures, intended to be brought into force by ministerial order all at the same time, to implement the Agreement Establishing the Caribbean Court of Justice. (I will, more often than not, be referring to that Agreement as "the Agreement".)
... The Caribbean Court of Justice itself will be established by the Bill entitled the Caribbean Court of Justice Act. When I come to deal with that Bill, I will address this House on the important issues of the funding of the Court and the safeguards provided to ensure the independence and insulation from political influence of the Court and the Regional Judicial and Legal Services Commission.
I will, however, be highlighting, as I go along, the bases and reasons for the establishment of the regional Caribbean Court of Justice in replacement of the Judicial Committee.
In February 2001, Madame President, the Prime Minister sought and obtained the support of the House of Representatives for the signing of the Agreement for the Establishment of the Caribbean Court of Justice, and similar support was subsequently obtained from this House. On February 14 of that year, at the 12th Inter-Sessional Meeting of the Heads of Government Conference, when the Agreement opened for signature in Barbados, the Prime Minister signed the Agreement on behalf of Jamaica. Representatives of nine other member states of the Caribbean Community likewise signed the Agreement on that date.
In May of last year, Madame President, the Prime Minister sought and, as was thereafter done in this House, after full debate obtained, by affirmative resolution, the support of the House of Representatives to proceed with the ratification of the Agreement. As was indicated then, this administration sought and obtained that support although not obliged by any rule of constitutional law or by parliamentary practice to do so. Parliamentary support was sought with the firm conviction, Madam President, that with the passage of four decades of independent status the time had indeed come for Jamaica to subscribe to the establishment of the Caribbean Court of Justice as Jamaica's final appellate court in replacement of the Judicial Committee of the Privy Council.
That support was sought with the firm conviction that we have, in the Caribbean, persons of the necessary learning, expertise and integrity to constitute our final appellate court and to administer justice in cases coming before it.
Indeed, as the Report of the Representative Committee of the Organisation of the Common-wealth Caribbean Bar Associa-tions stated in June 1972: "Already in the Caribbean the defunct Federal Supreme Court had proved to us to the widest satisfaction that a regional court of the first quality could be established. The opportunity is now afforded to establish a court of similar standing but one which for the first time would have the ultimate authority in the region for the territories of the region."
I say this with particular emphasis, Madame President, to make it clear that the situation is not, as some have been heard to suggest, that justice is being sacrificed to the concept of sovereignty. It is our firm view that the CARICOM region can provide a final appellate court second to none in its integrity and independence and in its delivery of justice to the people of the region.
AGREEMENT
It is recognised that the Agreement and the proposed legislation to implement the Agreement do not shut out the possibility of the appointment of Judges of the Court from outside the region, as the judicial qualifications required for the appointment of the Judges include service with distinction as a judge in a court of unlimited jurisdiction in the wider Common-wealth, or in a State exercising civil jurisdiction common to Contracting Parties, or in a court with appellate jurisdiction from any such court. Similarly, the requisite qualifications for appointment as a Judge of the Caribbean Court of Justice include distinction in the practice or teaching of law for a specified period in such jurisdictions. It is anticipated, however, that the Judges of the Court will be largely drawn from the CARICOM region.
We asked for the support of Parliament to proceed with the ratification of the Agreement with the vision, Madame President, that the establishment of such a court would bring Jamaica's final appellate jurisdiction within the reach of a large number of Jamaicans to whom it is not now available.
I say this because, although the seat of the Court will be in Trinidad and Tobago, the Agreement allows the Court to sit in the territory of any member state. And what this means is, of course, that the Court can, and it is expected, will, be an itinerant court so that appeals will not involve costly travel over long distances to the Court as it will, instead, come to the appellants. This represents a decided advantage, in terms of time and costs, over the present situation in which appeals to the Privy Council involve travel all the way to England.
And we asked for the support of Parliament for the ratification of the Agreement with the appreciation, Madame President, that its implementation will play a vital role in the deepening of the process of Caribbean regional integration and will represent a step towards the completion of the process of political sovereignty on which we embarked in 1962 when Jamaica became an independent member of the Commonwealth.
I say this without apology, although there are those who have been critical of my saying so, because the concept of sovereignty does, in fact, play a significant role in the abolition of appeals from Jamaica to the Judicial Committee in the same way that, as is abundantly clear, it has played an important and openly acknowledged role in such a development in disparate Commonwealth jurisdictions.
As I said earlier, over the years, Madame President, there has been a progressive decline in the jurisdiction of the Privy Council. From as early as 1964 an international law journal article, entitled "The Judicial Committee of the Privy Council: a Waning Jurisdiction", examined what it regarded as the even then declining jurisdiction of the Privy Council and, in closing, commented that the jurisdiction of the Privy Council would not increase but was likely to diminish still further.
And so indeed it has. In some cases, it is true, it has been on the basis of a newly attained republican status that appeals to the Privy Council have been abolished as something considered to be inconsistent with that newly acquired republican status.
The abolition of appeals to the Privy Council, however, has not always been based on the attainment of republican status. In some cases, it is the attainment of independence that has been regarded as the rationale for the abolition of such appeals.
SOVEREIGNTY
And so, I emphasise, the role of the concept of sovereignty in the abolition by independent Commonwealth states of appeals to the Privy Council is not peculiar to Jamaica but, rather, is a rationale which is widely accepted by Commonwealth States which have walked this path, including New Zealand which, as members of this House will be aware, recently enacted legislation which provided for the cessation of appeals to the Privy Council on December 31, 2003.
...Let me once again remind the members of this Senate of two things. The first is that the initiative which provided the impetus for the establishment of the Caribbean Court of Appeal came from the Organisation of Commonwealth Caribbean Bar Associations (OCCBA) as early as in 1970.
It was this organisation of barristers, Madame President, which in 1970 called for the development of proposals for the establishment of a Caribbean Court of Appeal in order to sever the vestiges of dependency which continued to be reflected in the constitutional requirement for the final determination, by Her Majesty in Council, of appeals from the region. A similar call was then made, at Jamaica's invitation, by a meeting of the Caribbean Heads of Government Conference held in that same year, under the chairmanship of Prime Minister Hugh Shearer. There was, thereafter, a 1970 Report on the issue after further consideration by a committee of Attorneys-General of the region and, also, recommendations by a representative committee of the said Caribbean legal fraternity in its June 1972 Report.
Secondly, the delegation from Jamaica to the 1988 Conference of Heads of Government which took the first definitive decision on proposals for the establishment of the Caribbean Court of Justice was led by the then Prime Minister, now the Leader of the Opposition, the Most Hon. Edward Seaga.
ENTRY INTO FORCE OF THE AGREEMENT AND BEYOND
The Agreement Establishing the Caribbean Court of Justice entered into force on July 23, 2002 upon deposit of instruments of ratification by St. Lucia, Barbados and Guyana. On June 9, 2003, Madame President, with the support of both Houses of Parliament given by affirmative resolution, and acting on Jamaica's behalf, the Prime Minister signed the instrument of ratification of the Agreement at a ceremony held at Jamaica House for that purpose.
Jamaica, as members of this House will be aware, will not be the first country to implement that Agreement by the enactment of legislation to establish the Caribbean Court of Justice and to abolish appeals to the Privy Council and replace such appeals by appeals to the Caribbean Court of Justice. Such legislation has already been enacted in Barbados and St. Lucia, although not yet brought into force. Suriname and St. Vincent and the Grenadines have also passed legislation to be a part of the Court in its original jurisdiction.
The Caribbean Court of Justice (Constitutional Amendment) Bill, Madame President, is, as I indicated earlier, one of three companion measures to implement the Agreement. The other two Bills are the Caribbean Court of Justice Bill which is a Bill to establish the Caribbean Court of Justice and for connected matters, and the Judicature (Appellate Jurisdiction) (Amendment) Bill, a Bill to amend section 35 of the Judicature (Appellate Jurisdiction) Act, a section which also makes provision for appeals, in certain circumstances, to Her Majesty in Council in criminal cases.
The existing situation is that section 110 of the Constitution provides for appeals to Her Majesty in Council as of right in certain cases specified in the section and as may be enacted in other legislation, and for appeals by leave of the Court of Appeal in other specified cases or as provided in other legislation. That section, by subsection (3), also makes it clear that its provisions do not affect any right of Her Majesty to grant special leave to appeal from decisions from the Court of Appeal to Her Majesty in Council in any civil or criminal matter. Section 110 of the Constitution contains provisions which are not entrenched.
Appeals by special leave of Her Majesty, Madame President, are nor permitted by virtue of subsection (3) of section 110 or of any other provision in the Constitution. The position regarding such appeals, once said to lie by virtue of the royal prerogative, was made clear in a 1998 decision of the Privy Council itself which has now been reaffirmed in another decision, given by that Court on June 10, 2004, this time an appeal from Jamaica, in the case of Dave Antonio Grant.
The right of the Crown to grant special leave to appeal to the Privy Council is said in those cases to be "no longer a wholly prerogative power" but "at best, a power which is in substance statutory, being regulated by the Judicial Committee Acts, with a vestigial and purely formal residue of the old prerogative powers". I will be dealing, in due course, with the situation arising, as a consequence of this, in relation to the abolition of such appeals.
ABOLISH APPEALS
This Bill, in implementation of the Agreement ratified by Jamaica on June 9, 2003, will repeal section 110 of the Constitution and replace it with provisions which, with the proposed amendment, will not only expressly abolish appeals from the Court of Appeal of Jamaica to Her Majesty in Council which lie as of right or by leave of the Court of Appeal, but will also abolish appeals which lie from any court to the Privy Council by special leave of Her Majesty in Council. The Bill will provide, instead, for appeals from the Court of Appeal to the Caribbean Court of Justice, the regional Court which will be established by the proposed Caribbean Court of Justice Act, as of right, by leave of the Court of Appeal and by special leave of the Caribbean Court of Justice.
The abolition of appeals to the Privy Council effected by this legislation will be subject, however, to certain transitional provisions in relation to proceedings pending when the Act comes into force and judgments remaining unsatisfied at that date.
