2014ays--The Privy Council vs CCJ Debate

8/10/2019 2014ays--The Privy Council vs CCJ Debate

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F D 1 3 A

The Privy Council vs CaribbeanCourt of Justice (CCJ) Debate.

LECTURER: DR. AIEKA SMITH

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Dr. Aieka Smith Lecture 3
http://www.theipinionsjournal.com/wp-content/uploads/2009/10/privycouncilb.jpg


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OUTLINE


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This lecture will primarily focus on :

Commonwealth countries that withdrew from thePrivy Council

The CCJ (establishment, jurisdictions, composition,members, funding)

The Privy Council vs CCJ debate


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Countries that withdrew from the Privy Council

Canada 1949

Guyana 1966

Hong Kong 1997

India 1949 Pakistan 1950

Singapore 1994

Barbados 2005 Belize 2011

New Zealand 2004

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Judges of the CCJ


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CCJ: Background

The CCJ :

Was first proposed at the sixth Caribbean Heads ofGovernment Conference in Jamaica in 1970.

Is set to function as the Caribbeans regional finalcourt of appeal.

Was established in 2001 to replace the London-based Privy Council as the region's final court.

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CCJ: JURISDICTIONS

The Court has dual jurisdictions:Original jurisdiction and an Appellate jurisdiction

1. Original jurisdiction:The court will regulate trade relationships between the member states

of CARICOM. It will be the sole interpreter of the Revised TreatyChaguaramas which establishes CARICOM and will be the solearbitrator as it relates to disputes between participating states, i.e.countries governed by this treaty.

2.Appellate jurisdiction.In its appellate jurisdictionthe court will be the final court to

which an individual can appeal an unsatisfactory judgment.

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Countries that are full members of the CCJ

Only three countries (Barbados, Guyana &Belize) are full members of the CCJ established in2001 to replace the London-based Privy Council asthe regions final court of appeal.

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CCJ: Trinidad& Tobagos intentions(April 2012)

Trinidad & Tobago proposed a phased withdrawalfrom thePrivy Council.

It intends to introduce legislation to abolish appeals

to the Privy Council in all criminal matters. Privy Council- civil and constitutional matters

CCJ- Criminal matters

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CCJ: Dominica to become full member

In January 2014 Dominica received Britainsapproval to make the CCJ its final court of appeal.

(See,http://www.jamaicaobserver.com/news/Dominica-gets-nod-to-adopt-CCJ-as-final-appellate-court_15873118. See

also,http://www.jamaicaobserver.com/latestnews/Dominica-to-become-full-CCJ-member)

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Arguments in support of the Privy Council

Good track record-good quality judgments- good repute.

History- in existence for many years-institutionalized in 1833.

Objective- far removed from the Caribbean and so decisions are deemed tobe impartial and based solely on the law.

Free to litigants- eg., a group of lawyers called the London Group arealways willing to represent accused persons in death penalty cases.

Human rights oriented- England abolished the death penalty in the 1950s-Europe has been declared a death penalty free zone. Europes foreign policyincorporates recommendations for the abolition of the death penalty.

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Arguments in support of the Privy Council contd.

Fear that CCJ judges will be politically appointed

CCJ will be a financial burden on Caribbean governments.

Issue of time- the CCJ has not been properly debated-we are not ready forthe CCJ as a final court-we should try the CCJ as a tier below the PrivyCouncil to see if it works

Poor state of national courts (poor infrastructure, lack of speed andefficiency, heavy backlog of cases) shows that we will not be able to handlea regional court.

CCJ could become embroiled in political issues which could weaken itsauthority.

Foreign investors trust the Privy Council.

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Arguments against the Privy Council

Incompatible with Caribbean sovereignty &independence.

Judges of the Privy Council are insensitive to localconditions.

Dual jurisdiction of the Caribbean Court of Justice-economic predictability is dependent on the stability of

the legal regime-uniform laws are necessary forintegration.

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The Privy Council does not hear many cases from the Caribbean eachyear- most of the cases heard are death penalty cases and casesconcerning companies- a former Attorney General for Jamaicacommented that only the wickedest and the richest appear before thePrivy Council.

It is expensive to access the Privy Council but the CCJ will be itinerantand thus more readily accessible. The CCJ will operate as an itinerantcourt,ie. the judges will move across the Caribbean and sit in differentcountries to hear cases from those respective countries.

The CCJ will allow the Caribbean to develop its own jurisprudence.

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Members of the Caribbean judiciary feel that it is aninsult to have their judgments scrutinized by English

judges- suggest that English judges are viewed assuperior- psychological remnant of colonialism

The Privy Council wants to get rid of appeals form theCaribbean.

Visa requirement- situations can occur and have in fact

arisen where a person has a case before the Privy Counciland wants to represent himself but cannot appearbecause he does not have a UK visa.

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Loosening the ties to Britain

Lord L. Hoffman, in an address to the annual dinnerof the Law Association of Trinidad and Tobago inOctober 2003, encouraged the Caribbean toestablish its own court of final appeal.

He explained: I do not underestimate the difficulty of creating a

final court for the various Caribbean communities. But I thinkthat states which have so much in common in their historyand values, which can even play cricket together, should beable to do so.

He further highlighted that: We in London will do what wecan to help, as we would, if in the end you decided to continuethe present system. But my own view is that a court of yourown is necessary if you are going to have the full benefit ofwhat a final court can do to transform society in partnershipwith the other two branches of government.

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Loosening the ties to Britain contd

Lord Nicholas Phillips (former President of theSupreme Court in the UK) in 2009 argued that:

A disproportionate amount of time was spent on

cases from the Commonwealth Caribbean, Caribbean countries should establish their own

appellate court.

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Loosening the ties to Britain contd

Lord Browne-Wilkinson (former President of thePrivy Council) pointed out that:

Appeals from Caribbean courts to the Privy Council

should be scrapped.

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CCJ: Funding Arrangements contd

* Annual costs of the court are to be funded by interestaccruing to the trust fund and the principal is to beheld in investments to ensure viability of the court.

* Each country will repay a stated portion of the$100m.

*If a state defaults on repayment the CDB has the rightto call in all loans given to that state, so states are

legally obliged to pay.(See, http://www.jamaicaobserver.com/columns/The--

catastrophe--warning-on-CCJ_8576237)

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CCJ: Issues of Political Interference

The provisions for safeguarding the independence of the CCJjudges are almost identical to the constitutional provisions forprotecting judicial independence in the CommonwealthCaribbean (as outlined in your lecture on the hierarchy of

courts).

1.Appointment of judges- There is an independent appointmentprocess. The President of the CCJ is appointed by the Headsof Government of the participating states. The other judges

are appointed by the Regional Judicial and Legal ServicesCommission. Judges can be appointed from anyCommonwealth country.

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CCJ: Issues of Political Interference contd

2.Security of tenure- Judges hold office until age 70.The office of a judge cannot be abolished while thereis a judge holding that office (judges cannot be maderedundant). A judge can continue in office after age

70 (with permission) in order to complete cases.

3. Remuneration- Judges are paid from the TrustFund. The salary of a judge cannot be reduced while

he/she holds office. Judges are also entitled tobenefits of the office.

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CCJ: Issues of Political Interferencecontd

4.Termination- judges can only be removed from officebefore retirement for causewhich includesmisconduct or inability to carry out the functions ofoffice due to illness (physical or mental) or other

inability.

5.Immunity-Judges are immune from criminal orcivil liability for anything said or done while

operating in the office of a judge.

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Referendum & the CCJ

Several civil society groups such as the Jamaicansfor Justice (JFJ) have urged that the method beingused in Jamaica to implement the CCJ as a final

court is contrary to democratic principles and havecalled on the government to hold a referendum onabolition of appeals to the Privy Council so that sucha decision will be legitimate.

They argue that the abolition of appeals to the PrivyCouncil is a sensitive issue warranting the views ofthe people/citizens of Jamaica.

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Referendum & the CCJ

Delroy Chuck of the Jamaica Labour Party (at the timethe party's spokesperson on justice and nationalsecurity):

--It is the parliamentary Opposition's consideredopinion that a matter such as this is of such grave

and exceptional national importance that itrequires consultation with the people of Jamaica.

June 27,2012(See, http://www.jamaicaobserver.com/news/Opposition-

insists-on-CCJ-referendum_11823877 )

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Referendum & the CCJ *

The Peoples National Party (PNP) in Jamaica argued thefollowing:

A referendum is not required by Section 110 of the JamaicanConstitution which maintains the right of appeal to the Privy Council asthis is not an entrenched provision. The Privy Council can be removed by a

simple majority vote in both houses. 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(See, http://jamaica-gleaner.com/gleaner/20120910/lead/lead7.html;

http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/18912; )

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In your tutorials you should examine:
http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/18912http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/18912http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/18912http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/18912http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/18912http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/18912http://televisionjamaica.com/Programmes/PrimeTimeNews.aspx/Videos/18912http://jamaica-gleaner.com/gleaner/20120910/lead/lead7.htmlhttp://jamaica-gleaner.com/gleaner/20120910/lead/lead7.htmlhttp://jamaica-gleaner.com/gleaner/20120910/lead/lead7.html


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In your tutorials you should examine:

The arrangements for funding the CCJ- loan of US$100 million loaned throughthe Caribbean Development Bank.- US$12 million spent to set up the court-remaining US$88 million held in a trust fund- to be invested in low riskinvestments and the interest earned to be used for the recurring expenses-countries responsible for repaying predetermined portions of the loan- if a statedefaults the CDB reserves the right to call in all outstanding loans for that state

Whether the court will be open to political interference- there are safeguards inthe CCJ Agreement aimed at preventing this- provisions concerningappointment, tenure, remuneration and termination of judges and theirimmunity from suit

Referenda and the CCJ- read the case of Independent Jamaica Council andOthers v Hon Syringa Marshall Burnett and the Attorney General of Jamaica

(CCJ Case).

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Discussion

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Documents

2014ays--The Privy Council vs CCJ Debate