Constitutional Comparisons by A Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights
| DOI | http://doi.org/10.1111/1468-2230.12263 |
| Published date | 01 May 2017 |
| Author | Tracy Robinson,Arif Bulkan |
| Date | 01 May 2017 |
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THE
MODERN LAW REVIEW
Volume 80 May 2017 No. 3
Constitutional Comparisons by A Supranational Court
in Flux: The Privy Council and Caribbean Bills
of Rights
Tracy Robinson and Arif Bulkan∗
This article examines how the Judicial Committee of the Privy Council makes constitutional
comparisons between ‘related’ constitutions that are or were within its jurisdiction, deploying
its own precedents, as a pragmatic method of resolving idiosyncratic questions that arise across
multiple constitutions. In particular, it considers the Committee’s approach to the longstanding
question of the interpretation of the opening section of Caribbean constitutional bills of rights,
which has far reaching implications for the scope of constitutional protection of human rights.
The JCPC’s answer over time to this question reveals the fault lines for this supranational
constitutional court as its jurisdiction peters out yet remains. The gaze of comparativism is
very harsh as older constitutions are evaluated in light of newer ones and also as fossilised
constitutional interpretations presented in earlier JCPC cases where the Committee no longer
has jurisdiction are given new life in contemporary cases.
‘[The JCPC] is a disappearing body, but . . . it will be a long time before it will
disappear altogether.’ Viscount Haldane of Cloan.1
INTRODUCTION
The Judicial Committee of the Privy Council (JCPC)2, whose judges by and
large are senior UK judges mostly sitting on the UK Supreme Court,3is a
supranational court in flux with an overseas jurisdiction that has dramatically
∗Respectively, Faculty of Law, University of the West Indies, Mona and Faculty of Law, University
of the West Indies, St Augustine.
1 Viscount Haldane of Cloan, ‘The Work for the Empire of the Judicial Committee of the Privy
Council’ (1922) 1 CLJ 143, 154.
2 We also use the terms the ‘Board’, ‘Judicial Committee’ and ‘Privy Council’ interchangeably to
refer to the Judicial Committee of the Privy Council.
3 Underthe Appellate Jur isdiction Act 1876, the Law Lords became the permanent judges of the
JCPC. Today the membership of the JCPC comprises Justices of the UK Supreme Court and
other Privy Councillors who have held high judicial office. The most typical panel comprises
of five judges, but in very contentious cases there have been panels of seven or nine judges. In
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(3) MLR 379–411
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The Privy Council and Caribbean Bills of Rights
declined but is not dead.4At the turn of the twentieth century, the JCPC
was a dominant imperial court, serving as the final court of appeal for what
is thought to be one quarter of the world’s population,5and at their indepen-
dence 32 of 61 British colonies retained the JCPC.6In global terms today the
appellate jurisdiction of the JCPC is tiny.7Appeals come to it from just twelve
independent states and the handful of small UK overseas territories, Crown de-
pendencies and the British Isles.8The Anglophone Caribbean dominates the
JCPC’s overseas jurisdiction where the latter remains the final court of appeal
for three quarters of the states and overseas territories, despite the establishment
of Caribbean Court of Justice (CCJ) inaugurated in 2005.9
recent years, there have occasionally been panels of three judges. The major ity are members of
the UK Supreme Court but the last decade has seen an increase in the number of the Privy
Councillors sitting on appeals who are judges of the Court of Appeal of England and Wales, the
Inner House of the Court of Session in Scotland, or the Court of Appeal in Northern Ireland.
Judges of superior courts in Commonwealth nations can also be appointed as Privy Councillors.
The participation of colonial and later Commonwealth judges on the JCPC has been heavily
debated since the nineteenth century (B. Ibhawoh, ‘Asserting judicial sovereignty: The Debate
of the Abolition of the Privy Council Jurisdiction in British Africa’ in S. Dorsett and J. McLaren,
Legal Histories of the British Empire: Laws, Engagements and Legacies (Abingdon: Routledge, 2014)
30, 31; P. Mitchell, ‘The Privy Council and the Difficulty of Distance’ (2016) 36 OJLS 26.) At
least eight judges from New Zealand have servedas Pr ivy Councillors (A. Le Sueur,What is the
Future for the Judicial Committee of the Privy Council? (School of Public Policy, University College
London, 2001) 5). Only four appointed Privy Councillors have come from the Caribbean, all
former Chief Justices, and they sat very infrequently on the JCPC. The last knownpar ticipation
by a Caribbean judge on the JCPC was that of Mr Justice Edward Zacca, former Chief Justice of
Jamaica and former President of the Courts of Appeal of the Turks and Caicos Islands, Cayman
Islands and Bermuda and the Bahamas, who sat on the trilogy on death penalty cases in 2004:
Boyce vR[2004] UKPC 32, [2005] 1 AC 400 (Barbados) (Boyce); Matthew vState [2004] UKPC
33, (2005) 1 AC 433 (Trinidad and Tobago) (Matthew); Wat s on vR[2004] UKPC 34, (2004) 64
WIR 241 (Jamaica) (Wat so n ).
4 See, generally on the JCPC, Le Sueur, ibid; N. Cox, ‘The Abolition or Retention of the Privy
Council as the Final Court of Appeal for New Zealand: Conflict between National Identity
and Legal Pragmatism’ (2002) 20 NZULR 220; S. Voigt, M. Ebeling and L. Blume, ‘Im-
proving Credibility by Delegating Judicial Competence: The Case of the Judicial Committee
of the Privy Council’ (2007) 82 J Development Economics 348; M. Gleeson, ‘The Influ-
ence of the Privy Council on Australia’ (2007) 29 Aust Bar Rev 123; S. Amaral-Garcia and
N. Garoupa, ‘Judicial Politics at the Pr ivy Council: Empirical Evidence’ 18th Annual Confer-
ence of the International Society for New Institutional Economics, Durham, NC, 19-21 June
2014 at http://papers.sioe.org/paper/1321.html (last accessed 1 July 2016); Lord Neuberger,
‘The Judicial Committee of the Privy Council in the 21st Century’ (2014) 3 CJICL 30.
5 P. O’Connor, ‘The Constitutional Role of the Privy Council and the Prerogative’ (Justice
Report, 2009) 16, citing N. Bentwich, The Practice of the Privy Council in Judicial Matters (London:
Sweet & Maxwell, 3rd ed, 1937). See also N. Bentwich, ‘The Judicial Committee of the Pr ivy
Council as a Model of an International Court for Human Rights’ (1948) 2 ILQ 392; R. De,
‘“A Peripatetic WorldCour t”: Cosmopolitan Courts, Nationalist Judges and the Indian Appeal
to the Privy Council’ (2014) 32 Law & Hist Rev 821.
6 H. Young, ‘Extraterritorial Courts and States: Lear ning from the Judicial Committee of the
Privy Council’ (PhD Dissertation, Georgia State University, 2016) 10.
7 D. Clarry, ‘Institutional Judicial Independence and the Privy Council’ (2014) 3 CJICL 46, 51.
He estimates that the JCPC now services merely 0.1 per cent of the global population.
8 Appeals lie from the following independent states within the Commonwealth: Antigua and
Barbuda, The Bahamas, Cook Islands and Niue (Associated States of New Zealand), Grenada,
Jamaica, Kiribati, Mauritius, St Christopher and Nevis (hereinafter St Kitts and Nevis), St Lucia,
St Vincent and the Grenadines, Tuvalu and Trinidad and Tobago.
9 There are 12 independent states in the Anglophone Caribbean and eight still send appeals to the
JCPC, namely (with their dates of independence) Antigua and Barbuda (1981), the Bahamas
380 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(3) MLR 379–411
Tracy Robinson and Arif Bulkan
In this article, we examine the JCPC’s approach to comparing related con-
stitutions and their bills of rights by looking at one longstanding and idiosyn-
cratic question—the interpretation of similar introductory or opening sections
of constitutional bills of rights in the Commonwealth and overseas territories.
Typically this opening section guarantees fundamental rights in very general
terms and begins, ‘Whereas every person in . . . is entitled . . . to each and
all of the following . . . ’10 It is followed by about a dozen separate sections
that deal with the rights in a detailed and usually narrower form. These to-
gether with the opening section and an enforcement provision are the main
components of these constitutional bills of rights.
Why does the debate about these opening sections, which is hardly one
of universal relevance, matter to comparative constitutional law? First, this
model of bill of rights was one of the most far-reaching twentieth century
constitutional exports and can still be found in South East Asia, the Pacific,
the Caribbean, and marginally in Afr ica.11 Typically in countries with these
constitutional bills of rights, a general right to pr ivacy, family life, protection
against deprivation of property without compensation and, in some constitu-
tions, equality and discrimination on the grounds of sex, are named only in
these opening sections. Whether these opening sections are enforceable, di-
rectly or indirectly, has far reaching implications for the scope of constitutional
protection of human rights and is a question that has absorbed Commonwealth
courts with similar bills of rights.12 For the most part, the JCPC and Car ibbean
(1973), Grenada (1974), Jamaica (1962), St Kitts and Nevis (1983), St Lucia (1979), St Vincent
and the Grenadines (1979) and Trinidad and Tobago (1962), as well as the six British overseas
territories found in that reg ion—Anguilla, BVI, Cayman Islands, Bermuda, Montserrat and
Turksand Caicos Islands. The Car ibbean Court of Justice (CCJ) wasestablished on 14 February
2001 by the Agreement Establishing the Caribbean Court of Justice and inaugurated in 2005
with original jurisdiction in Car ibbean Community law and, as a final court of appeal for
the region. It remains underutilised as a final court of appeal. The CCJ Agreement has been
signed by twelve Caribbean Community (CARICOM) states but to date the court serves only
Barbados, Belize, Dominica and Guyana in its appellate jurisdiction. Antigua and Barbuda has
scheduled a referendum to obtain approval for constitutional reforms to accede to the appellate
jurisdiction of the CCJ. On 24 November 2016, Grenada held a referendum, the last step in
amending the Constitution to accept the appellate jurisdiction of the CCJ. A majority voted
against this constitutional amendment.
10 In the Caribbean, see the following constitutions of both independent states and overseas
territories: Anguilla Const, s 1; Antigua and Barbuda Const, s 3; Bahamas Const, s 15; Barbados
Const, s 11; Belize Const, s 3; Bermuda Const, s 1; Dominica Const, s 1; Grenada Const, s 1;
St Kitts and Nevis Const, s 3; St Lucia Const, s 1; St Vincent and the Grenadines Const, s 1.
11 C. Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments
in Britain’sOverseas Territories (Oxford: OUP, 2007) 261-263. In 2001 the Chief Justice of Canada
made the stunning remark that ‘most of our Commonwealth common-law friends, it seemed,
not only did not have [a bill of rights] but viewed having one as rank heresy’, unmindful of the
common law countries in Asia, Africa, the Pacific and Caribbean that have entrenched bills of
rights in their constitutions, many very similar in structure and content. B. McLachlin, ‘Bills of
Rights in Common Law Countries’ (2002) 51 ICLQ 197, 197.
12 See Shah vAtt Gen (No. 2) [1970] EA 523 (CA Uganda); Austin vChairman of the Detainees’
Review Tribunal [1988] LRC (Const) 532 (SC Zimbabwe); Rattigan vCIO [1994] 1 LRC 343
(Zimbabwe); Dow vAtt Gen [1992] LRC (Const) 623 (CA Botswana) (Dow). See, generally,
J. S. Read , ‘Soci´
et´
eUnitedDocksvGovernment of Mauritius and Desmarais Brothers Ltd and Ors
vGovernment of Mauritius (note)’ (1982) 26 J Afr L 177; Y. Ghai, The Kenyan Bill of Rights:
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(3) MLR 379–411 381
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