Delinking from the Judicial Committee of the Privy Council

AuthorDuke Pollard
ProfessionDirector of the CARICOM Legislative Drafting Facility and one of the principal consultants on all development aspects of the Caribbean Court of Justice on which he now sits as a Judge
The Caribbean Court of Justice
~ 126 ~
Chapter FIVE
Delinking from the Judicial Committee of the
Privy Council
The genesis of the jurisdiction of the Judicial Committee of the
Privy Council is traceable to the inordinate degree of arrogance
associated with the disposition of royal power in the middle ages.
Then, the crown was presumed to be an inexhaustible store of
justice which legitimised the establishment of royal courts to
dispense justice according to the common law of the land. Since
the presumption about the inexhaustible supply of justice inhering
in the crown appeared to be irrebuttable, a residium of justice
was always deemed to be available to the crown, for deployment,
as an attribute of royal prerogative, among its privy councillors
to address matters of peculiar concern to the crown. Consider in
this context royal courts like the infamous Court of Star Chamber
which oftentimes ignored the procedural requirements of due
process in addressing ‘matters of riot or tending to riot, robbery,
libel, slander, perjury and offences against royal proclamations’.
In effect, matters tending to breaches of the king’s peace or
prejudicial to royal authority! These so-called prerogative courts
came to be identified with instruments of royal oppression and
the arbitrary employment of sovereign power, particularly under
the Stuart kings, and fell into desuetude around 1689.
Delinking from the Judicial Committee of the Privy Council
~ 127 ~
But the crown was always perceived to be competent to
establish courts from its inexhaustible resources of justice and
privy councillors were identified to deal with petitions to the
crown, as the ultimate source of justice, as well as appeals from
courts in the colonies comprising the British Empire. The latter
were addressed by a small committee of privy councillors.
Inevitably, this committee of privy councilors, which later came
to be known as the Judicial Committee of the Privy Council, was
perceived as an indispensable attribute of empire and the judicial
symbol of colonialism. By the Judicial Committee Act, 1833, the
Committee was formally accorded the status of a special judicial
tribunal and determined its composition, procedures and
jurisdiction which continues today with appropriate
modifications. For a considerable period of its history the
determinations of the Judicial Committee of the Privy Council
did not admit of dissenting opinions and took the form of advice
to the sovereign. The doctrine of stare decisis did not apply to its
determinations since the royal disposition was subject to change
with the vicissitudes of empire.
The jurisdiction of the Judicial Committee of the Privy Council
as at March 2000 is as follows:1
1. Commonwealth Jurisdiction
Appeals to Her Majesty in Council
An appeal lies from the undermentioned countries and territories
in the following circumstances:
(a) By leave of the local Court of Appeal – ‘as of right’
from final judgments in civil disputes where the value
of the dispute is more than a stated amount. Some courts
also have discretion to grant leave in interlocutory
matters or matters of great public importance or
constitutional matters.
(b) By special leave of Her Majesty in Council - usually in
criminal cases but sometimes in a civil case where the
appellant has failed to comply with the rules regarding
leave by the local Court of Appeal, e.g. as to time for
applying or lodging security for costs test:
The Caribbean Court of Justice
~ 128 ~
Antigua and Barbuda
New Zealand
St. Christopher and Nevis
Saint Lucia
Saint Vincent and the Grenadines
(c) The Sovereign Base Area of Akrotiri (in Cyprus)
(d) The United Kingdom Overseas Territories, which
include -
British Antarctic Territory
British Indian Ocean Territory
British Virgin Islands
Cayman Islands
Falkland Islands
St. Helena and dependencies
Turks and Caicos Islands
(e) Appeal to local head of state
An appeal lies from the Court of Appeal of Brunei
to the Sultan and Yang di-Pertuan - in civil cases
only. By agreement between Her Majesty and
the Sultan these appeals are heard by the Judicial
Committee who report their opinion to him
instead of to Her Majesty.
(f) Appeals to the Judicial Committee

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT