At the center of the judicial system in the Commonwealth Caribbean lies the English Judicial Committee of the Privy Council. “The Judicial Committee of the Privy Council is primarily the final Court of Appeal for those Commonwealth territories which have retained the appeal to Her Majesty in other matters.”‘ The Privy Council is an institution that became established as the final court for the individual countries during the era of colonialism. The Privy Council is the British Crown’s private council.
It is composed of more than three hundred members, including cabinet members, distinguished scholars, judges, and legislators. It is the oldest form of legislative assembly still functioning in the UK, responsible for a number of responsibilities. The Queen is the Head of the Privy Council and is advised by a formal body of advisers made up of senior politicians who are (or have been) members of either the House of Commons or the House of Lords.
The Caribbean Court of Justice is the judicial institution of the Caribbean Community (CARICOM) which was established in 2001 and based in Port of Spain, Trinidad and Tobago.
It also serves as the highest court of appeals on civil and criminal matters for the member states. In 1973, the Treaty of Chaguaramas, establishing the Caribbean Community and the Common Market (CARICOM) came into being. This Treaty has since been revised to take into account changes in the global trading environment and the establishment of the CARICOM Single Market and Economy (CSME). Since disputes will inevitably arise under the revised Treaty establishing the CSME, CARICOM Member States saw the importance of establishing a competent entity to resolve those disputes and develop a body of community law.
The Organisation of Commonwealth Caribbean Bar Association (OCCBA), based on a study it has conducted, reported the need for a Caribbean Court of Appeal as the final Court of Appeal for the Commonwealth Caribbean. The report stated that the Court was a necessary institution for Caribbean independence and the development of an indigenous jurisprudence. It was agreed that “A Caribbean Court of Appeal should be established to replace the Judicial Committee of the Privy Council as the final appellate court for the Commonwealth Caribbean.” A decision later made resulted in the renaming of the institution to the Caribbean Court of Justice (CCJ).
The CCJ will be the final court of appeal from civil and criminal decisions of the Courts of Appeal of those Member States of the Caribbean Community (CARICOM) which presently send appeals to the Judicial Committee of the Privy Council. The Court will function in two jurisdictions – an original jurisdiction and an appellate jurisdiction. The CCJ in its appellate jurisdiction will apply the laws of the Member States from which they are hearing appeals. In the exercise of its original jurisdiction, the CCJ will be performing the role of an international Court, applying rules of international law in interpreting and applying the revised Treaty of Chaguaramas- a jurisdiction that the Privy Council does not have. This is the main distinguishing feature of the CCJ to the Privy Council.
Unlike the Privy Council with the Queen at the Head, the CCJ is headed by the President and then nine other members who all make up the Judges of the Court. Under The Privy Council, the Judicial Committee consists of senior judges appointed as Privy Counsellors. With the Privy Council, the Sovereign, when acting on the Council’s advice, is known as the “King-in-Council” or “Queen-in-Council”. The members of the Council are collectively known as “The Lords of Her Majesty’s Most Honourable Privy Council”. The Sovereign appoints Privy Counselors on the advice of the government and generally consists of senior members of Parliament, the church and judiciary. The Privy Council shows a more complex structure than the CCJ.
The CCJ is the highest appellate court for Barbados Guyana and Belize however all the other islands retain the Privy Council as their final appellate court. Another distinguishing feature is that the CCJ can interpret the Treaty and apply it to our legal systems only where possible. This limitation means that it has to be done within the confines of the different laws of the islands. This feature is unlike to the EU system where the EU court could make direct laws which would affect member states. The Privy Council would be interpreting Caribbean laws based on the examples they have had with the Single European Community. On the other hand the Caribbean Court of Justice would have an active role in resolving trade disputes and trade integration based on the laws relating to the Caribbean community.
References
Davila, Isabela C., Replacing the Privy Council with the Caribbean Court of Justice in the OECS Countries. Pdf. Feb 2013.
The Privy Council. The Judicial Committee of the Privy Council. London, England. Feb 2013
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