January 09, 2012

Privy Council does cost something

by Jeffrey Foreman, Contributor
Source: Jamaica Gleaner

I respond to one aspect of the arguments advanced by Robert Collie in his article 'Use CCJ funding to improve our own courts', published Thursday, January 5.

While no direct cost to maintain the Privy Council is incurred by the Government of Jamaica , there is a cost attached to accessing the court which would either be lessened or not exist at all if the Caribbean Court of Justice were our final court. In this regard, I speak of the cost to taxpayers of having to pay for counsel in the UK or, alternatively, airfare, accommodation and other expenses for anyone travelling to argue before Their Lordships.

Such expenses would clearly be significantly less if the same individuals travelled next door to Trinidad. Moreover, these costs would be eliminated whenever the CCJ, executing part of its role as a roving court, has sittings in Jamaica. To this latter point must be added to the mix the fact that teleconferencing equipment has been installed in all signatory states so that, even if the CCJ was sitting in Trinidad, no government official need pack a single bag to go anywhere.

Individual financial burden

Those same costs faced by the government have to be borne by individuals. It almost need not be said but, whereas the state, even a cash-strapped one like ours, can always allocate funds or raise taxes or borrow to meet its obligations, in this case legal ones, an individual does not have the same latitude.

One can therefore conclude that the cost of accessing the Privy Council must serve as deterrence to any Jamaican who is of the view that justice has not been done at the level of the Court of Appeal. Indeed, most cases from Jamaica involve the State (criminal or constitutional matters), wealthy individuals, or big companies.

In contrast, the trend so far for the CCJ is that more civil cases are being heard by that court. This fact was highlighted by Sir Dennis Byron, president of the CCJ, in a speech titled 'The CCJ and its Integral Role In Development Of Caribbean Jurisprudence', at a lecture hosted by the UWI Cave Hill Law Society in November 2011.

In that same speech, Sir Dennis noted that the court has heard a number of civil appeals in forma pauperis under Rule 10.6 of the CCJ rules.

The cost attached to accessing the Privy Council has the effect of keeping ordinary individuals away from the highest rungs of justice. Indeed, as has been pointed out in many fora, limited access also means that the development of our jurisprudence is restricted to criminal matters and those affecting moneyed interests.

Lastly, I would like to counter the argument being implied by Mr Collie that the money spent to honour our treaty obligations has been wasted on a court which does not help to improve the administration of justice in the country.

In addition to providing the teleconferencing equipment men-tioned earlier, the CCJ, through strengthening the work of Caribbean Association of Judicial Officers, the Caribbean Academy for Law and Court Administration, and the Caribbean Court Technology Users, enhances the administration and delivery of justice in Jamaica and throughout our region.

If, as Justinian noted, "Justice is the constant and perpetual wish to render to everyone his due," most Jamaicans will have to satisfy themselves with a placard-bearing type of justice, for it is all they will be able to afford with the Privy Council as our final court.

Jeffrey H. Foreman is a student in the Faculty of Law, UWI, Cave Hill


Anonymous said...

In the comments section to that story Dpgraham and Robert Collie seemed to think that we can make the JCPC (Judicial Committee of the Privy Council) into some sort of roving court since it has visited the Bahamas 3 times (December 2006, December 2007 and in 2009) but it would seem that the the JCPC itself has other ideas. The last time the JCPC seems to have visited the Bahamas was in March/April 2009. That visit and the previous ones in 2006 and 2007 seems to have sparked off the comments by Lord Nicholas Phillips (first president of Britain's new Supreme Court and the Senior Law Lord of the JCPC) in September 2009. At that time he was reported as saying that he would be "searching for ways to curb the 'disproportionate' time he and his fellow senior justices spent hearing legal appeals from independent Commonwealth countries to the Privy Council.." and "suggested that in 'an ideal world', Commonwealth countries would stop using the Privy Council.."

It's interesting that the JCPC has not met in the Bahamas since that last visit in early 2009 and since Lord Phillips' comments. In a few months it would have been 3 years since the last Privy Council visit and I'm sure if Lord Phillips has anything to say about it, that last visit would definitely be the last visit ever. There is no way he could be searching for ways to curb the time spent hearing appeals from outside Britain while still being quite happy to send the court all over the world (the Privy Council is the final court of appeal for other countries outside the Caribbean as well such as Mauritius in the Indian Ocean and Kiribati and Tuvalu in the Pacific Ocean). The dream that we can somehow turn the JCPC into some free-of-cost roving court funded by the British tax-payers is just that: a dream.

I find it incredible that even after the most Senior Law Lord the JCPC basically told us point blank that we are a burden we have some people like Robert Collie who think we continue with it. We are clearly not welcome and it smacks of parasitism to expect the British taxpayers to fund the JCPC's adventures in Jamaica, Bahamas, Mauritius and Tuvalu. We may well find that we become faced with one of two situations in such a world where the JCPC roams at (British) taxpayers' expense: 1. The taxpayers might become so angry at this that in response the British parties all agree on a policy requiring that any country which wishes to access the JCPC must pay for part of its upkeep and must foot the bill for the JCPC to visit them to hear cases or... 2. As Britain continues to reform its justice system we might one day find that they legislate the Judicial Committee of the Privy Council (while retaining the Privy Council itself) out of existence and transfer its domestic obligations to the the new Supreme Court of the United Kingdom as part of a move to streamline the justice system and appease upset British taxpayers. Then we will be left with appeals to a non-existent court....

Anonymous said...

Also Deidre, you might be interested in posting this story:


It seems after wasting 7 years the JLP has realized that the JCPC doesn't really like hearing our cases and that establishing a local final court of appeal while already paying for the CCJ in its original jurisdiction is a waste of money, hence the logical conclusion to now not oppose the CCJ (even if they don't really support it). I wouldn't be surprised though if they change their stance once again.