Delinking from the Judicial Committee of the Privy Council

• Author: Duke Pollard
• Profession: Director 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
• Pages: 126-157

The Caribbean Court of Justice

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Chapter FIVE

Delinking from the Judicial Committee of the

Privy Council

THE JUDICIAL COMMITTEE OF THE PRIVY

COUNCIL’S JURISDICTION

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

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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

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Antigua and Barbuda

Bahamas

Barbados

Belize

Grenada

Jamaica

New Zealand

St. Christopher and Nevis

Saint Lucia

Saint Vincent and the Grenadines

Tuvalu

(c) The Sovereign Base Area of Akrotiri (in Cyprus)

(d) The United Kingdom Overseas Territories, which

include -

Anguilla

Bermuda

British Antarctic Territory

British Indian Ocean Territory

British Virgin Islands

Cayman Islands

Falkland Islands

Gibraltar

Montserrat

St. Helena and dependencies

Turks and Caicos Islands

(e) Appeal to local head of state

Brunei

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