Argue for and against the merits of changing the laws in the Caribbean to replace the British Privy Council as the final Court of Appeal

FD13A: Caribbean Society, Government & Law

November 3rd, 2003

In recent years there has been much debate and discussion concerning the issue of the Caribbean’s final court of appeal. Currently the British Privy Council is the highest court of appeal, both in Britain and the English speaking Caribbean.

Before independence, the judicial systems of the Commonwealth were part of the British Empire and the Privy Council was an essential element of the entire system. After independence however, the binding authority of the Privy Council decisions rest solely on the fact that this body is the highest court of each individual independent territory’s judicial system. This authority is founded on the specific retention of the Privy Council as the final appellate court found in the constitutions of the Commonwealth Caribbean territories with the exception of Guyana, which abolished appeals to this body in 1970.

However, the Commonwealth Caribbean is at this time seriously considering changing its laws to replace the British Privy Council as the final court of appeal.

One of the major issues raised in connection with severing ties with the Privy Council is the question of whether or not the Privy Council has contributed meaningfully to the development of jurisprudence indigenous to the Commonwealth Caribbean, or even to the development of an indigenous legal system in general. This issue identified here immediately assumes political, economic, nationalistic and even emotional overtones, and clearly points to the issue of Caribbean independence and sovereignty.

Many prominent figures in the region have stated emphatically their support for the view that being tied to the Privy Council is a contradiction of our status as independent nations. Justice Telford Georges, one of the most venerated justices in the Caribbean and former president of the Court of Appeal of Belize, is one who believes that an independent country should assume responsibility for providing a court of its own choosing for the final determination of legal disputes arising for decision in the country.

Obviously there must be some alternative system put in place for the region if it is to abolish its connection with the British Privy Council and the only alternative that has been given major consideration is the proposal to establish a Caribbean Court of Justice (CCJ). The idea for the establishment of such a court was first seriously mooted at a CARICOM heads of Government Meeting in Kingston, Jamaica in 1970. However it was not until February 14th 2001, that ten CARICOM countries signed the agreement to establish the CCJ.

The recent intensification of the debate surrounding this topic has been attributed greatly to the realization that the Privy Council has been exhibiting a tendency to be swayed by international decisions and opinions even in opposition to local sentiment. This is of course opposed to the assumption that the Privy Council is equipped to determine and assess local social norms, and thus reflect them in legal policy.

Though this may be a valid point, one cannot ignore the Privy Council’s obvious tendency, which has been particularly manifested in the recent line of cases concerning capital punishment. Specifically in the Pratt & Morgan ruling, which advocated that the hanging of a prisoner who has been on death row for more than 5 years, which constitutes undue delay, could constitute cruel and inhumane punishment. Essentially this decision is merely a reflection of similar precedents emanating from the United Nations Human Rights Committee and the European Court.

It is suggested, that it is doubtful that the Privy Council correctly assed the prevailing norms of West Indian society, and that it seemed more to rely on its distaste for capital punishment. Consequently, due to the great backlog of criminal cases that exist in the Caribbean states, it is almost inevitable that criminals on death row will spend a long time awaiting capital punishment. Thus, according to the Pratt and Morgan ruling they would be subject undue delay, providing them with an avenue to escape execution. These issues have provided the impetus for renewed initiatives towards the abolition of appeals to the British Privy Council.

However, on the flip side, one must consider the issue of hypocritical political expediency. It is the