The privy council or a Caribbean final court of appeal?

• Author: Hugh A. Rawlins
• Position: B.A.; LL.B.; LL.M.; Banister and Solicitor, Lecturer in Law, University of the West Indies; formerly Solicitor General of St. Kitts (St. Christopher) and Nevis, West Indies
• Pages: 235-272

THE PRIVY COUNCIL OR A CARIBBEAN

FINAL COURT OF APPEAL?*

HUGH A.

RAWLINS***

So very often we allow the memory of persons who have made

worthy sacrifices for the general good and for the upliftment of our

societies to pass into oblivion unheralded and unsung. It is therefore to

the credit of the patrons of this Centre of the University of the West

Indies that the memory of F.O.C. Harris is being cherished and

revered. It must have occurred to us by this time that strong and

lasting national or regional institutions can only be erected upon such

sacrifices which are born of goodwill, discipline and hard work.

It is a signal honour for me to deliver the inaugural lecture in this

series for two reasons. First, the pride which it gives to be associated

with the memory of the late Francis Otho Coleridge Harris, Q.C.;

B.C.L.; M.A.(Oxon), whose contribution to Dominica and to the

Commonwealth Caribbean1 and to the Commonwealth is worthy of

emulation and praise. As you are aware, Mr. Harris was a leading

member of the honourable and noble legal profession. He was a

draftsman whose contribution to legislative drafting in the Caribbean

is immeasurable. He served the United Nations Development

Programme (U.N.D.P.) for many years as a Law Revision expert in

developing countries. At the time of his passing, on 26 March, 1989,

This is a partially revised version of the First F.O.C. Harris Memorial

Lecture, delivered at the University Centre, Dominica, West Indies on 29

February, 1996. The revision has been made for the purpose of putting the

presentation into publishable form while, as far as possible, retaining the

format of a lecture. Comments which were made after the lecture and

which have been drawn upon in this version are acknowledged herein.

B.A.; LL.B.; LL.M.; Banister and Solicitor, Lecturer in Law, University

of the West Indies; formerly Solicitor General of

St.

Kitts (St. Christopher)

and Nevis, West Indies. I am grateful to Mrs. Edith Bellot-Allen, the

Resident Tutor at the University Centre, and the organising committee for

having afforded me the opportunity to deliver the lecture.

1 The words "Commonwealth Caribbean" and " Caribbean" are used

interchangeably herein. The reference is to the territories of the Caribbean

which were former colonies of the United Kingdom and which have

attained independence. They are all members of the Commonwealth.

and for the preceding four years, he had the charge of

the

production

of the 1990 Revised Edition of

the

Laws of Dominica. His nephew Mr.

Ray Harris, the Law Revision Commissioner of Dominica saw it

through to completion, F.O.C. Harris was also a legal educator. I am

advised that in his latter years F.O.C. Harris gave unstinting service

to this Centre. In this regard he lent his last energies, particularly to

the teaching of the subjects for the first year Bachelor of Laws

programme of the University of the West Indies. He did this gratis.

Mr. Harris also contributed financially to the education of

persons.

It

is pleasing to note that some of the beneficiaries of his philanthropy are

present tonight. He

was

also an eminent jurist. In the early years of the

independence experience in Africa, he answered the call to serve as a

Judge and Law Revision Commissioner there. He would no doubt look

kindly on this tribute and find this particular topic very appropriate for

this occasion.

In the second place, this exercise affords me an opportunity to

engage in meaningful dialogue with a wider Caribbean audience on a

subject which, although it is of critical importance to us in this

diaspora at this juncture, has for many years been treated either as an

intellectual debate for academic gratification or as a political or

administrative exercise for the agenda of regional meetings.

Initially, the request was for the presentation of a lecture on the

abolition of appeals to the Privy Council. However, from my former

association with the subject, a certain mind-set had already developed

which causes me to prefer to focus on the setting up of

a

court of final

appellate jurisdiction within the Commonwealth Caribbean2 rather than

on the abolition of appeals to that august body which, in the main, has

served us with distinction. This mind-set was not affected by the

formal letter of invitation which suggested as the topic: "The Privy

Council vs. The Caribbean Court of Appear,

It is my intention to focus on two main questions. First, is there a

sound case for a Caribbean Court of Appeal? Second, if there is, is

there the will to institute it? Before attempting to consider these

questions, however, it will be helpful to consider briefly the

antecedents of the Privy Council which now serves as the highest

appellate body for all Commonwealth Caribbean jurisdictions except

2 Hereinafter referred to as "the Caribbean Court of Appeal".

Guyana. Grenada wandered from its fold for a brief period3 following

the 1979 coup d'etat which displaced the Government and the 1973

Independence Constitution of that country, but it has recently returned

to

the

jurisdiction of

the

Privy Council.4 A knowledge of

the

historical

background of the Privy Council can in some measure put the

considerations of the setting up of a Caribbean Court of Appeal into

proper perspective.

THE BACKGROUND

Lloyd Barrett, in his seminal work on the Constitution of Jamaica,5

indicates that the Privy Council is derived from the residuary

jurisdiction which the Sovereign as the fountain of justice possessed

over all British subjects. In its formative years, the Privy Council was

an important instrument of English government. It was directly

responsible for the majority of the administrative functions of that

government.6 It conducted its work by means of a system of

Committees, one of which was the Committee for Trade and Foreign

Plantations. It was to this Committee7 that petitions from what became

known as the British Empire were directed.

From earliest times, the Privy Council exercised some judicial

functions. However, in 1640, during the Civil War in England, it lost

this jurisdiction and its judicial function was confined mainly to

3 Grenada abolished appeals to the Privy Council by The Privy Council

(Abolition of Appeals) Law, 1979 (Peoples Law No 84 of 1979), s.2.

This was confirmed by Act No.l of 1985, s.2. The Privy Council itself

upheld the validity of that legislation in Andy Mitchell and Others v, The

D.P. P.(1986) L.R.C. (Const.) 35; (1986) A.C.73.

4 By the Constitutional Judicature (Restoration) Act,

No.

19

of 1991 and the

West Indies Associated States Supreme Court (Grenada) Act (Re-

enactment) Act, No.20 of 1991.

5 The Constitutional Law of Jamaica, Oxford University Press, 1977, at page

314.

Louis Blom-Cooper and Gavin Drewry, in Final Appeal: A Study of the

House of Lords in Its Judicial Capacity, indicate. at p. 103. that the Privy

Council and the House of Lords share a common ancestry, being direct

descendants of the judicial and legislative powers originally vested

exclusively in the King in Council.

7 In those early times it was comprised of 5 or 6 persons, 1 or 2 of whom

were lawyers.