The most recent symposium held on the Caribbean Court of Justice (CCJ) in Antigua & Barbuda has left a debate on whether the retention of two separate final appeals courts by member countries could set up a clash between the CCJ and the Privy Council.
Speaking at the event, which was held at the Tim O’Reilly Auditorium on Thursday, Jamaican law professor Winston Anderson said that because some Caribbean Community (Caricom) countries retained the Privy Council and others have moved on to the CCJ as final appeals courts, decisions taken by the highest court in the Caribbean could end up being reviewed by the Privy Council in London based on the way cases are referred.
“If a national court in Antigua & Barbuda does the referral, and it applies the interpretation given by the CCJ, there is nothing to prevent a dissatisfied party from appealing that decision ultimately to the Privy Council, and of course the Privy Council could then give a decision which is inconsistent with a ruling given by the CCJ,” the professor said.
He bolstered his argument by saying that the Privy Council is not bound by the decisions of the CCJ. Lower courts must adhere to the decisions of higher courts in their jurisdiction. That’s because those decisions are referred to as binding precedents or judge-made law. Judge-made laws from outside a local jurisdiction are known only as persuasive precedents, which means that judges are not bound to view decisions from foreign jurisdictions as laws of the state in which they’re hearing cases.
However, while acknowledging that CCJ decisions could end up under the scrutiny of the Privy Council, noted regional Jurist Dame Bernice Lake told The Daily OBSERVER yesterday that the possibility represented no threat to the reputation of the justices of the final appeals court set up by Caricom.
“… And to the extent that the Privy Council is considering the decision and the jurisprudence reflected in the Caribbean case of which you (The Daily OBSERVER) speak, it would be no different from the Privy Council referring to a case from the United States Supreme Court.
“… It is … looking at it from the international perspective and seeing whether the rationale of the particular case applies,” said Dame Bernice.
So, according to Dame Bernice’s view, even if there weren’t two separate final appeals courts recognised among Caricom member states, the highest court set up by the grouping could still well see its decisions being reviewed by Law Lords in England.
Meantime, Professor Anderson also told the symposium that, by retaining the Privy Council, Antigua & Barbuda was wasting resources that it has committed to the CCJ.
“The people of Antigua & Barbuda contribute 2.11 per cent towards the CCJ Trust Fund of US $100 million. In other words, the Government of Antigua & Barbuda is paying a total of US $2,110,000 million in order to finance the operations of the court,” the Jamaican professor said. He also said that, in the event that the CCJ needed more financing, Antigua & Barbuda was bound by the Treaty of Chaguaramas to contribute. He further posited that the commitment was the same whether Antigua & Barbuda used the appellate aspect of the CCJ or not.