CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL Constitutional Adjudication of the Privy Council by P Sean Morris, 2019, reproduced by permission of Oxford University Press (https://oxcon.ouplaw.com/view/10.1093/law- mpeccol/law-mpeccol-e783)

P Sean Morris

TABLE OF CONTENTS A. Overview and Jurisdictional Origins ...... 1 B. Appeals, Jurisdiction and Governing Legislations ...... 12 1. Powers and the Application of the Common Law ...... 18 2. Constitutional and Other Legislative Requirements for Appeals to the JCPC ...... 19 3. Application for Leave to Appeal ...... 20 4. The Effect of JCPC Decisions ...... 23 C. The JCPC and Constitutional Review ...... 24 1. The JCPC and the Creation of the Irish Free State ...... 25 2. and Women as ‘Persons’ ...... 26 3. India and the JCPC ...... 30 4. Australia and inter se Constitutional Questions ...... 33 5. The JCPC and Death Penalty in the Commonwealth Caribbean: Jamaica ...... 35 6. Constitutional Guarantee for Judicial Independence ...... 40 D. Critical Assessment ...... 43

A. Overview and Jurisdictional Origins 1 English common law is one of the most unified system of law that can be found in many countries, and one British legal institution has been credited for the uniformity of English common law—the Judicial Committee of the Privy Council (hereinafter ‘JCPC’ or ‘Privy Council’). The JCPC has its origins in medieval customs of English law, which have changed in many aspects over the centuries. Nowadays, the JCPC serves as the final court of appeal for British overseas territories (eg Cayman Islands; see Overseas Territories, Australia, France, Netherlands, New Zealand, United Kingdom, United States of America); (eg ); some members of the Commonwealth (eg Mauritius); and former colonies where the constitution recognizes the right of appeal to the JCPC (eg Jamaica) (→ colonization). 2 In medieval English legal custom, the monarch was, for all intent and purposes, acknowledged as the ‘fountain of justice’. As such, various different curiae regis (king’s councils) functioned either as councils of advisers to the monarch or as semi-judicial organs. The curia regis eventually served as the foundation for modern tribunals and courts in contemporary Britain. One of the advisory bodies to the monarch, the Privy Council, commanded immense powers regarding how different subjects of the realm could petition the monarch for a final say on various CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL issues. That all changed with the development of the two Houses of Parliament in the 14th century (Jones 3) as petitions could now be sent to the upper chamber, the House of Lords. 3 From the 15th century, the House of Lords would lay claim to jurisdiction over final appellate matter (Jones 3–4), and by 1621 ‘received cases’ that essentially paved the foundation for the modern JCPC (Hortsman 411). One of the early laws that lay the groundwork for the JCPC was a 1641 legislation that barred the curia regis and the monarch from encroaching on the jurisdiction of the English courts. The Act for the Regulating the Privie Councell and for Taking Away the Court Commonly Called the Star Chamber: 1640, 5 Statues of the Realm 110–112 (UK), Section 3, helped to resolve the tense relationship that existed between the monarch and Parliament. Although the 1641 law excluded British colonies, the increase in the number of cases from the overseas realms triggered the JCPC Act of 1833 (see An Act for the Better Administration of Justice in His Majesty’s Privy Council: 14 August 1833 (UK)). Cases such as those relating to the jurisdiction of the King in Council regarding an Irish estate (see Sir John Freyer v Bernard (1724) (UK)) were one factor. Another factor that prompted Parliament to pass the 1833 JCPC Act was the inherent right of the King to distribute justice to his subjects (see Christian v Corren (1716) (UK)). Lastly, a significant event that led to Parliament creating the JCPC was the abolition of the slave trade in the British Empire (Slavery Abolition Act: 1833, 3 and 4 Will IV c 73). 4 The 1833 JCPC Act was, in part, to ‘regularize and enhance the efficacy of appeals to the King in Council’ (Herman 15); however, in reality, it has been seen as a way to harmonize English common law and adjust to new trading realities in the colonies. In 1844, Parliament passed a supplementary act (see the Judicial Committee Act of 1844: 1844, c 69 Regnal 7 and 8 Vict (UK)) which granted overseas colonies and possessions right of access to the JCPC. Section 3 of the 1833 JCPC Act states that all appeals regardless ‘of any law, statute, or custom’ may be brought before the JCPC. The modern JCPC still receives appeals from a number of ancient and ecclesiastical courts, including the Arches Court of Canterbury; the Church Commissioners; the Chancery Court of York; prize courts and the Court of Admiralty of the Cinque Ports. The ecclesiastical jurisdiction of the JCPC grew out of religious differences after England under Henry VIII had broken off relations with the Catholic Church in Rome. Nowadays, other matters within the UK that fall within the jurisdiction of the JCPC include the Disciplinary Committee of the Royal College of Veterinary Surgeons (Veterinary Surgeons Act: 1966, c 36, Sections 3, 17, 22–23 (UK)); or disputes under the House of Commons Disqualification Act: 1975, Section 7 (UK). 5 During the late 19th century and early 20th century the JCPC was, in one breath, a supranational court, as it was the court of last resort for countries such as Canada, Ireland, India, Australia, and many others in the former British Empire. The role of the JCPC gradually declined after World War I, when the Irish Free State abolished appeals to the JCPC (Constitution of the Irish Free State (Saorstat Eireann) Act: 1922, 13 Geo 5 c 1 (Ir)) (see also Robert Lyon Moore and Ors v The Attorney General of the Irish Free State (1935) (Privy Council)). In this decision, the JCPC CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL settled the question on the jurisdiction of the parliament of the Irish Free State to amend the Irish Constitution or pass legislations that contradicted the Anglo–Irish Treaty of 1921 (Articles of Agreement for a Treaty between Great Britain and Ireland (signed 6 December 1921, entered into force 31 March 1922); Irish Free State (Agreement) Act: 1922, 12 Geo 5, c 4 (UK)). 6 After World War II, other major countries of the British realm followed suit in abolishing appeals to the JCPC. The first was Canada that began the process in 1933 for criminal matters (Criminal Code Amendment Act: 1933 (Can); Canadian Statute–Westminster–23 and 24 George V, c 53, Section 17) (see also British Coal Corporation v the King (1935) (Privy Council)) and in 1949 for civil matters (An Act to Amend the Supreme Court Act: 1949 (Can)). Other major countries such as India followed suit with the Abolition of Privy Council Jurisdiction Act: 1949 (India). The Commonwealth of Australia took a very long time to abolish appeals to the JCPC. That process began with the Australian Constitutional Convention of 1897–1898, and a compromise clause on the JCPC in the Australian Constitution of 1900. Legislative efforts culminated in 1986 (see The Privy Council (Limitation of Appeals) Act: 1968 (Austl); The Privy Council (Appeals from the ) Act: 1975 (Austl); Australia Act: 1986 (Cth) Section 11 (Austl)). 7 Other members of the British Commonwealth that abolished appeals to the JCPC included East African countries via the then, first East Africa Court of Appeal (EACA) 1967–1977 and New Zealand (Supreme Court Act: 2003, Public Act No 53 2003 (NZ)), repealed by the Senior Courts Act: 2016, Public Act No 48 2016 (NZ)). The Caribbean Commonwealth nations and a few other small island states in the Pacific that gained independence in the 1960s–1980s, however, retained the JCPC as their final appellate court. This is because most of their constitutions are Orders in Council (ie, an executive act of the monarch acting upon advice of the Privy Council, and in this instance, is represented by members of the JCPC) with provisions for a right of appeal to the JCPC. Furthermore, London viewed the right of appeal to the JCPC as part of the development of rule of law in the newly independent states, allowing them to have access to an impartial judicial organ. 8 A number of the legislative actions that former colonies took to abolish appeals to the JCPC where the JCPC had to actually rule on the said issues raised arguments of political bias, and some of the rulings from the JCPC were very contentious and triggered further constitutional separation of these countries from the JCPC. 9 The UK’s judicial system was reformed in 2005 which saw the introduction of a Supreme Court (operational since 1 October 2009) introduced by the Constitutional Reform Act: 2005 (UK) (CRA 2005). The United Kingdom Supreme Court (UKSC) replaced the Appellate Committee of the House of Lords and the JCPC whose members were, by virtue of the now repealed 1876 Act, appointed for life (see the Appellate Jurisdiction Act: 1876, 29 and 40 Vict c 59 (repealed) (UK)). 10 The JCPC and the Supreme Court are, to some extent, a singular body. While the Supreme Court may take appeals from England and Wales in civil proceedings (CRA 2005, Section 40(2)) or other parts of the UK, apart from criminal appeals from Scotland, the JCPC only has jurisdiction over cases from overseas territories, Crown dependencies, former colonies with a constitutional right of appeal, and CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL from special courts such as on matters of an ecclesiastical nature. The Supreme Court and the JCPC share the same physical infrastructure, general staff and judges: in terms of the latter, their role slightly changes by the jurisdiction of the case. Furthermore, the CRA 2005 no longer permits Lords of Appeal in Ordinary (‘Law Lords’) to sit in the House of Lords, unless they retire from the Supreme Court. 11 The broad remit of the JCPC remains essentially intact as its previous incarnations and it can hear a range of cases covering different legal developments in the common law countries that have a right of appeal to the JCPC. As the JCPC evolved, it has effectively become a piece of ‘common law and the British Constitution’ (Neuberger 30). Given that the JCPC’s primary jurisdiction is outside of the UK, it is an important legal institution that contributes to the development of the common law and often raises constitutional questions in the jurisdictions from which cases originate.

B. Appeals, Jurisdiction and Governing Legislations 12 This section will discuss some of the procedural aspects of bringing an appeal to the JCPC. The discussion is not exhaustive but provides insights into the constitutional impact on the countries that brought cases to the JCPC (for the procedural aspects of the various jurisdictions not fully covered in this discussion, see the Practice Directions of the Judicial Committee (Appellate Jurisdiction) Rules). 13 As a form of transnational court, the JCPC can cover a wide range of cases and, in the past, covered crime, civil law, international law, constitutional law and other forms of law from various jurisdictions. The Judicial Committee Act: 1833 (UK), as amended, is the main legislation that empowers the JCPC. The Constitutional Reform Act: 2005 (UK) also supplements the powers of the JCPC. The JCPC Act of 1833 originally had 31 sections, and of this number, ten have been repealed or replaced with different legislations. 14 The rulings of the JCPC are, technically, reports to the monarch. Section 3 of the JCPC Act 1833, as extended by the House of Commons Disqualifications Act: 1975, c 24 (UK), outlines the various appeals that can be brought before the JCPC. This provision provides that there is no limitation of the appeals that may be brought before the JCPC for a ‘report or recommendation’ for the monarch to consider. In practice, reports or recommendations (ie rulings) are implemented by the lower appellate court from the jurisdiction that raised an appeal (ie normally the final appellate court). On other occasions, reports and recommendations are implemented as Order in Council. 15 Moreover, under Section 4 of the JCPC Act 1833, the monarch may refer any matters to the Committee for hearing or consideration. Thus, by virtue of Section 4 of the JCPC Act 1833, the JCPC can be construed as a modern day advocate general for the Crown on special matters, and at the same time, the JCPC functions as a final court of appeal for Crown dependencies, overseas territories and former colonies with a right of appeal. It is this latter role where a right of appeal still exists in the constitutions of former English colonies that continues to make the JCPC CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL relevant. This is so because the JCPC effectively became an overseas constitutional court for criminal and civil matters, until a number of reforms in most of the former colonies abolished appeals to the JCPC. For those countries that still have a right of appeal to the JCPC such as some in the Commonwealth Caribbean, that right of appeal is mostly in criminal matters. 16 Section 7 of the JCPC Act 1833 authorizes the Committee to take oral evidence along with written depositions; under Section 8, the JCPC can cross-examine witnesses; and under Section 13, order a new trial ‘of any issue, either generally or upon certain points.’ Furthermore, the JCPC can issue subpoena regarding witnesses and production of documents under Section 19. The enforcement of rulings for overseas jurisdictions is set out in Section 21 and under Section 28, the JCPC can enforce decrees and orders. 17 In 2009 the Supreme Court of the United Kingdom came into operation and the advisory role the JCPC played in relation to legal matters in the UK on devolution was no longer within its jurisdiction. As a result of the Constitutional Reform Act: 2005 (UK), the JCPC is now largely an overseas constitutional court. The UKSC is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and .

1. Powers and the Application of the Common Law 18 The JCPC, is, in essence, similar to the UKSC, and they both share a number of administrative functions and share the same judges. What separates them is that the JCPC has jurisdiction almost exclusively for cases outside of the UK, whereas the UKSC has jurisdiction for cases in England and Wales and Civil Cases for Scotland. Thus, in its function, the JCPC has the power to overturn judgments from Commonwealth nations. In Willers v Joyce (2016) (UK) the UKSC confirmed the similarities of the UKSC and the JCPC by observing that ‘the JCPC almost always applies the common law, and either all or four of the five Privy Counsellors who normally sit on any appeal will almost always be Justices of the Supreme Court’ (para. 11). An uneven number of judges are required to sit when hearing an appeal from the Commonwealth of Nations. These judges are usually drawn from the UKSC as confirmed in Willers v Joyce (2016) (UK), but occasionally, the JCPC may consist of other Commonwealth Nation judges from the jurisdiction in which it is hearing a case. This is however very rare, and often times, such a judge may only serve in an honorary role. Furthermore, as a recent phenomenon, the JCPC may also sit in the jurisdiction in which an appeal originates. The JCPC actually sat in the Bahamas (2006; 2007; 2009; 2017) and Mauritius (2006) creating history in the process (see eg Scott (Appellant) v Attorney General and another (Respondent) (Bahamas) (2017) (Privy Council)).

2. Constitutional and Other Legislative Requirements for Appeals to the JCPC 19 The constitutions of various Commonwealth countries contain provisions for a right of appeal to the JCPC, or, on some occasion, that right is enshrined in other CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL constitutional documents, often legislative acts implementing agreements with the UK. For example, Art. 81 of the Constitution of the Republic of Mauritius: 12 March 1968 (Mauritius) states that an appeal to the JCPC as of right on the interpretation of the constitution or, for, final decisions in civil or criminal matters from the Court of Appeal or the Supreme Court of Mauritius (Art. 81(1)(a)). Furthermore, Art. 81(5) establishes that the JCPC may grant special leave to appeal from the decision of any court and civil or criminal matter. Similarly, Section 110 of the Jamaica (Constitution) Order (SI 1962/1550): 23 July 1962 (Jam) establishes appeal to the JCPC from decisions of the Court of Appeal in particular ‘final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution’ (Section 110(1)(c)). This provision of the Jamaican Constitution has been interpreted on several occasions by the JCPC, most prominently in Pratt and Morgan v Attorney General for Jamaica and Another (1993) (Privy Council).

3. Application for Leave to Appeal 20 Appellate Courts in Commonwealth Caribbean jurisdictions (eg the Bahamas) can grant ‘leave to appeal’ via special mechanisms of those court. 21 The two routes to follow for countries where the British monarch is head of state are (a) through the local court of appeal and (b) through Her Majesty in Council. In terms of the latter this requires that: ‘The Judicial Committee has complete discretion whether to grant leave. It is mostly granted in criminal cases (where leave cannot usually be granted by the Court of Appeal) but is sometimes granted in civil cases where the local Court of Appeal has for any reason refused leave’ (JCPC Practice Direction 1, para. 2.1(2)). In terms of appeal by application via the local court of appeal the process is generally the final appellate process: The circumstances in which leave can be granted will depend on the law of the country or territory concerned. Leave can be usually obtained as of right from final judgments in civil disputes where the value of the dispute is more than a stated amount and in cases which involve issues of constitutional interpretation. Most Courts of Appeals also have discretion to grant leave in other civil cases (JCPC Practice Direction 1, para. 2.1(1)). 22 The application for leave to appeal is more prominent in civil cases providing the case is of general public importance. For criminal cases, application for leave to appeal is more limited unless there has been some grave violation of the principles of natural justice. In Campbell (Noel) v The Queen (2010) (Privy Council), the jurisdiction of the JCPC was raised when it granted a Jamaican national special leave to appeal his conviction for murder. The defendant applied to the Jamaican Court of Appeal for leave to the JCPC; however, his application was denied.

4. The Effect of JCPC Decisions 23 When deciding cases, the JCPC has to function in its capacity as a court of last resort for either a sovereign state, semi-independent states or dependencies of CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL Britain. Under these circumstances, the JCPC does not function in a way so that the applicable law is international law or British national law. Rather, the JCPC sits by applying the national constitutional law of the jurisdiction from where an appeal arises. An appeal from Jamaica, for instance, requires the JCPC to apply Jamaican common law, guided by the Jamaican Constitution. The application of international law or even English common law to a case arising from Jamaica can only be invoked where such law directly pertains to the issue at appeal, or, forms significant → precedent in English common law. However, the JCPC has invoked international law and other national laws in cases, not as a result of a direct legal relation, but rather, in its role as the guardian of the common law overseas and how much international and national law impact the development of common law. The JCPC may set aside statutes in countries where such statues are unconstitutional and or rule on → due process and ‘human rights’ issues such as that relating to the death penalty (Pratt and Morgan v Attorney General for Jamaica and Another (1993) (Privy Council); Lewis and Others v Attorney General of Jamaica (2000) (Privy Council)). Although the JCPC overturned many cases that came from former dominions such as Canada, Australia and other colonies in the first 100 years of its existence: especially, as those cases related to legislative developments, it was actually more recent cases on constitutional legislative developments in Jamaica (see → Independent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett (2005) (Privy Council)) on the statutory nature of decisions regarding the implementation of the Caribbean Court of Justice (CCJ) that thrusted the JCPC in contemporary debates on its relevance for overseas jurisdictions.

C. The JCPC and Constitutional Review 24 This section will briefly discuss the major contentious decisions of the JCPC that raised questions on parliamentary sovereignty in present and past jurisdictions of the JCPC.

1. The JCPC and the Creation of the Irish Free State 25 One of the most poignant moments in the constitutional history of the JCPC was when it decided in Moore v Attorney General for the Irish Free State (1935) (Privy Council) that the Anglo–Irish Treaty creating the Irish Free State was constitutional. Although the Anglo–Irish Treaty did not provide for explicit appeals to the JCPC (Arts 1 and 2)—such a ‘right’ would be abolished by the Constitution (Amendment No. 22) Act: 1933 (Ir). It was this piece of legislation that prompted the JCPC to intervene, and, subsequently ruled that the Constitution Amendment Act 1933 was valid. The Constitution (Amendment) Act: 1933 (Ir) was preceded by the Constitution (Amendment No. 6) Act: 1928 (Ir) that amended Art. 50 of the Irish Free State Constitution. That provision (Art. 50) prevented any amendment of the Constitution if such amendment was not compatible with the Anglo–Irish Treaty of 1921. Art. 66 of the Irish Constitution of 1922 provided for appeals to the JCPC, and that provision was amended by the 1933 Act. The JCPC ruled that the Irish CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL Parliament availed themselves to the powers to repeal or amend the Constitution under the Irish Free State Constitution Act: 1922, 13 Geo 5 Sess 2 c 1 (UK).

2. Canada and Women as ‘Persons’ 26 Canada, the product of the British North America Act (BNA): 1867 (UK), helped shaped the early constitutional role of the JCPC. Moreover, given the federal nature of Canada, various disputes on Canadian federalism were settled in London as opposed to Ottawa, up to the year 1949 when Canada abolished appeals to the JCPC. A number of those disputes involved or impliedly referred to the Statute of Westminster: 1931 (UK), a piece of legislation that remains equally part of the constitutional document of Canada. 27 A number of successive decisions in 1937 by the JCPC on various aspects of the constitutional authority of Canada as a sovereign country were the main catalyst for Canada’s departure from the JCPC (see eg → Attorney General of Canada v Attorney General of Ontario and Others (1937) (Privy Council) (Minimum Wages Act: 1935 (Can)); Attorney General of British Columbia v Attorney General of Canada and Others (1937) (Privy Council) (Section 498A of the Criminal Code: 1936 (Can)). These rulings concerned mostly Canadian legislations on the great depression (1929–1939) (see also Attorney General of Canada v Attorney General of Ontario and Others (1937) (Privy Council) (Employment and Social Insurance Act: 1935 (Can)). 28 However, these decisions started a process of deep resentment for the JCPC that would ultimately lead to the abolition of appeals to the JCPC. The 1937 decisions on labour by the JCPC touched upon several areas that are normally the domain of a sovereign state. Thus, for example, in the decision concerning international treaty obligations on labour, the JCPC ruled effectively that Canada had no constitutional authority for implementing international labour conventions if such legislative authority was ‘inconsistent with the Constitution which gave it birth’ (Canada AG v Ontario AG (1937) UKPC 6, AC 326, 352). Canada felt betrayed by these rulings as it was hoped that the Canadian Constitution had the broad authority for legislations in areas of national significance, such as the great depression (see also Attorney General of British Columbia v Attorney General of Canada and Others (1937) UKPC 10 (Privy Council) (Farmers’ Creditors Arrangement Act: 1934 (Can)); Attorney General of Ontario v Attorney General of Canada and Others (1937) (Privy Council) (Dominion Trade and Industry Commission Act: 1935 (Can))). These disappointing rulings (see also Attorney General of British Columbia v Attorney General of Canada and Others (1937) UKPC 9 (Privy Council) (Natural Products Marketing Act: 1934 (Can))) from the JCPC energized opposition to the JCPC. However, due to the outbreak of World War II, it was not until 1949, some ten years after the introduction of An Act to Amend the Supreme Court Act: 1939 (Can), often referred to as Bill 9, that the goal of abolishing appeals to the JCPC was realized. 29 A quintessential case in the evolution of Canada’s Constitution and the role of the JCPC was Henrietta Muir Edwards and Others v Attorney General of Canada CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL (1929) (Privy Council) (Persons Case) in which women were recognized as ‘persons’. The JCPC ruled that Section 24 of the BNA Act 1867 also included women, and, therefore, women were also eligible for the Canadian Senate. The JCPC in arriving at its ruling argued that the Canadian Constitution, ie the BNA Act 1867, gave Canada ‘a living tree capable of growth and expansion’ (Persons Case 136). The notion of the Canadian Constitution as a living tree, or, capable of growth, as construed in the Persons Case, has to be seen in light of the participation of the British Parliament, where the BNA Act, 1867 was an Act of the British Parliament. On other occasions, the JCPC would contradict its earlier position on the Canadian Constitution as a living tree.

3. India and the JCPC 30 The passage of the JCPC Act 1833 in London brought reforms in the legal system of the colonies and a more effective streamlining of the various courts in the colonies. In the Indian colony for example, three high courts were created under the High Courts Act 1861 (An Act for Establishing High Courts of Judicature in India: 1861, 24 & 25 Vict c 104 (UK)) and provided a right of appeal to the JCPC via the new Indian high courts except for criminal proceedings. On other occasions, the Indian high courts could, in some circumstances, grant a special leave to appeal to the JCPC. 31 In 1935, the Indian Parliament enacted legislation for a Federal Court (The Government of India Act: 1935, 26 Geo 5, Part IX (India)). The Indian Federal Court would now be responsible for handling appeals to the JCPC. After India’s independence in 1947, the Federal Court was strengthened to hear appeals from Indian high courts (Federal Court of Enlargement of Jurisdiction Act: 1948 (India)) and in 1949, appeals to the JCPC were abolished with the Abolition of Privy Council Jurisdiction Act: 1949 (India) that conferred all Indian appeals to the Federal Court and later the → . 32 In a criminal libel case that reached the JCPC by special leave from the in 1914 (Channing Arnold v The King-Emperor (Lower Burma) (1914) (Privy Council)) the JCPC objected strongly to criminal jurisdiction from the colony of India: ‘This Committee is not a Court of Criminal Appeal’. That pronouncement, was of course, the opposite of criminal proceedings before the JCPC from Caribbean nations in contemporary times when compared to the 1910s in British India. However, the important element of Channing Arnold in terms of Indian constitutional history was that, despite the → royal prerogative of the monarch to review criminal proceedings, ‘constitutional and administrative’ (Channing Arnold para. 41) reasons demanded that such ‘power should not be lightly exercised’ (ibid.) as it would have caused ‘a severe blow’ regarding ‘the ordered administration of law’ (ibid.) within the British Empire. Thus, barring unreasonable disturbance in the application of, or, other grave injustice, there was no need for an intervention from the JCPC. CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL 4. Australia and inter se Constitutional Questions 33 Although the Commonwealth of Australia was one of the earliest constituent country within the British Empire, The Commonwealth of Australia Constitution Act: 9 July 1900 (UK) 1900 c.12 (63 and 64 Vict) permitted appeals to the JCPC. However, such appeals were limited, and constituted a compromise among the drafters of the Australian Constitution and London as the constitution drafters were totally opposed to London’s continuing role in the new state. Section 74 of the Australian Constitution 1900 barred the JCPC from deciding questions arising under the Constitution on questions as to the respective powers of the federal and state parliaments. What this meant in practice was that inter se questions on the nature of the federal system were only within the domain of the state courts to appeal to the Australian High Court. Appeals to the JCPC on inter se constitutional matters could only be done with a certificate from the High Court. A certificate was granted in Colonial Sugar Refining Company Ltd v Attorney General for the Commonwealth (1913) (Privy Council) and no other known cases. In this case, the JCPC examined the incidental powers of Australia, but did not address specific questions raised in the appeal, and, thus, avoided questions about the competence of the Australian legislature. 34 The legislative efforts to completely bar appeals to the JCPC from Australia gathered speed in the 1960s and lasted through 1986, after lengthy parliamentary manoeuvrings and judicial decisions that began with various legislative acts (Privy Council Limitation of Appeals Act: 1968 (Austl)); Privy Council Appeals from the High Court Act: 1975 (Austl); Australia Act: 1986 (UK) Section 11). Dismantling appeals to the JCPC in London meant that for the Australian judicial hierarchy, appeals from the federal courts, state courts and the High Court would need to be abolished. In confirming the 1975 legislation, the Australian High Court in Viro v The Queen (1978) (Austl) ruled that decisions of the JCPC would no longer be applicable to the High Court.

5. The JCPC and Death Penalty in the Commonwealth Caribbean: Jamaica 35 The modern significance of the JCPC is how much influence it has regarding appeals of constitutional cases from some of the larger Commonwealth Caribbean countries such as Jamaica. Although Jamaica is an independent country within the Commonwealth of Nations, the JCPC is, in effect, the constitutional adjudicator of Jamaica. At least, that is the thinking when it comes to some of the most controversial rulings on appeals from Jamaica. The JCPC, acting as a constitutional adjudicator for Jamaica, and the remaining Commonwealth nations in the Caribbean is a sort of special privilege that often engages in constitutional interpretation at the expense of the sovereignty of those nations. Hence, the JCPC is able to act with special powers of constitutional review in the event of flawed procedures in the domestic legislature regarding constitutional legislation. 36 The Jamaican Constitution is an Order in Council drawn up in London and not a statute drawn up by an independent Jamaican legislature. Thus, even though CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL Jamaica is an independent country and has treaty-making powers, those powers are limited, if, when implementing treaties in domestic legislation, constitutional procedures are not properly followed (see Independent Jamaica Council for Human Rights (1998) Ltd and Ors v Marshall-Burnett and Anor (2005) (Jamaica)). Prior to Independent Jamaica Council for Human Rights, the JCPC dispensed several cases that raised constitutional questions in Jamaica. In (Riley v Attorney General of Jamaica (1983) (Privy Council) (Riley)), the JCPC held that Jamaica could execute a man sentenced to death even though a number of years had passed since the original sentence (→ death penalty). For the JCPC, it was a question of whether the execution would have breached the Jamaican Constitution, especially Section 17(1) of the Jamaican Constitution, which prohibits ‘inhumane and degrading punishment.’ The delay, the JCPC argued, was not in ‘contravention of Section 17(1)’ (Riley 726) of the Jamaican Constitution. According to Section 17(4) of the Jamaican Constitution, if a law authorizing punishment preceded the Constitution, then the punishment cannot be unconstitutional. It was not the first time the JCPC encountered the constitutionality of the death penalty in the Caribbean. A Trinidadian defendant first raised the issue in De Freitas v Benny (1976) (Privy Council), and, similarly, in Abbott v Attorney General of Trinidad and Tobago (1979) (Privy Council) (Abbott). In both cases the JCPC upheld the death penalty. These very same questions on the constitutionality of the death penalty in the Caribbean would again appear before the JCPC in cases such as Pratt and Morgan v Attorney General for Jamaica and Another (1993) (Privy Council), and by this time the JCPC would reverse its earlier position. 37 Other questions pertaining to the constitutional development in the Commonwealth Caribbean on the death penalty gave the JCPC an opportunity to refine its position, however, at times; the JCPC would give conflicting signals. In Andy Mitchell and Others v Director of Public Prosecutions and Another (1986) (Privy Council) (Andy Mitchell), the JCPC recognized a Grenadian law (see Confirmation of Validity Act: 1985 (Gren)) that affirmed all Grenadian law since 1979, including the constitution and domestic legislation that abolished appeals to the JCPC (Privy Council (Abolition of Appeals) Law: March 1979 (Gren)) were suspended. The defendants, who were co-conspirators in a coup d’état were of the opinion that a local court had no jurisdiction to find them criminally liable for murder. The JCPC affirmed that appeals to the JCPC were indeed suspended under the Abolition of Appeals Act: 1979 (Gren), however, only as affirmed under the Validity Act: 1985 (Gren), and therefore, the coup co-conspirators could not appeal their conviction to the JCPC. The ruling in Andy Mitchell was in sharp contrast to that of the ruling in Independent Jamaica Council for Human Rights. In Andy Mitchell the JCPC effectively ruled against itself from hearing appeals whilst in Independent Jamaica Council for Human Rights, the JCPC was eager to demonstrate that it had the competence to rule on matters relating to the constitutional legislative process of Jamaica. 38 The death penalty in the Commonwealth Caribbean is a leftover form of legal punishment from English colonial laws. For the larger Commonwealth Caribbean countries such as Jamaica, Trinidad and Tobago, and Barbados, the death penalty has been, and also remains, a part of their constitution. This is so because the death CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL penalty, in these countries, is linked to the ‘savings clauses’ of their constitution. The savings clause is a provision that shields the death penalty from any legal challenge on its constitutionality. In other words, although some Commonwealth Caribbean constitutions prohibit torture and degrading punishment, there is an exemption for legislations that were already on the books prior to those countries gaining independence, including the death penalty. An example of the savings clause is Art. 17 of the Jamaica (Constitution) Order (SI 1962/1550): 23 July 1962 (Jam). Art. 17(1) provides: ‘No person shall be subject to torture or to inhumane or degrading punishment or other treatment.’ The justification of the death penalty, as enshrined in domestic law prior to Jamaica’s independence in 1962, is then set out in the next provision, Art. 17(2): ‘Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day’ (meaning 6 August 1962 when the Constitution entered into force). 39 The relevant law for the death penalty in Jamaica at the time of independence in 1962, was the Offences against the Person Act: 1864 (UK) Sections 2 and 3. This law is still operational, however, with amendments. The savings clauses in general were designed as a means of continuity as the Commonwealth Caribbean transformed itself from colonies to independent states (Burnham). The problem with the savings clauses is that they contradict other parts of the constitution that seeks to emulate international human rights norms. In 2004 the JCPC appeared to address such contradiction in Lambert v The Queen (Attorney General for Jamaica Intervening) (2004) (Privy Council) (Lambert)—and found, mandatory death penalty, where, applied for murder, was unconstitutional (Vasciannie 843). The Jamaican Parliament responded to the Lambert decision with a revised law (The Offences Against the Person Act: 1864 (as Amended to 2005) Section 2 (Jam)). But the most significant case of the JCPC that shaped Caribbean commonwealth nations law and their constitutional evolution is Pratt and Morgan v Attorney General for Jamaica and Another (1993) (Privy Council), where the JCPC reversed its previous position (Riley; Abbott) and held that the applicants were subjected to inhumane and degrading punishment and thereby their delayed execution violated Section 17(1) of the Jamaican Constitution. In their ruling, the JCPC made it known that two factors influenced their decision. The first was international law, in that, the delayed execution would have breached Art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR). The second factor was the Jamaican Constitution, and although the JCPC addressed the issue of Jamaican sovereignty ––‘a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence’ (Pratt and Morgan 33)—the JCPC found the delay a constitutional violation and effectively set in motion for the gradual abolishment of the death penalty in Jamaica. 40 Nevertheless, the death penalty was never legally abolished in Jamaica, despite the contradictory rulings of the JCPC and the Jamaican legislature lifting a moratorium in 2009 on the death penalty. Furthermore, the Jamaican Charter of Fundamental CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL Rights and Freedom (Constitutional Amendment Act 2011) sets out new rights that are incompatible with capital punishment and international law rights such as those found in the Universal Declaration of Human Rights (UNDR).

6. Constitutional Guarantee for Judicial Independence 40 The JCPC remains the final appellate court for several British Overseas Territories. These territories are , Ascension, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, the Falkland Islands, Gibraltar, Monserrat, , St. Helena, Tristan da Cunha and . In recent times, one of those territories tested the limits of constitutional guarantee for judicial independence when the JCPC decided on a case from the Turks and Caicos Islands. 41 Following a public outcry of alleged corruption in the Turks and Caicos Islands in 2009 the British Government suspended parts of the Turks and Caicos Constitution of 2006 and temporarily resumed direct rule from London. The Islands were granted self-rule by London in 2006 through the new Constitution of 2006. However, by 2009, a constitutional crisis developed because of allegations of corruption by the entire executive arm of the territory. The constitutional crisis on the islands triggered a Commission of Inquiry which recommended suspension of the 2006 Constitution and the creation of a special investigation team into the corruption allegations and the suspension of a right by → jury trial, should charges be brought against the former Premier and his associates. The special investigation team subsequently recommended charges and in 2015 a retired President of the Court of Appeal from Jamaica was brought in as trial judge. The appellants challenged the lawfulness of their proposed trial Misick and Others (Appellants) v The Queen (Respondent) (Turks & Caicos Is) (2015) (Privy Council) by arguing that the trial judge lacked security of tenure and would therefore not be partial, and that he did not raise the burden of proof before deciding on trial without a jury. 42 Prior to the trial, self-rule was restored on the islands through a new constitution in the 2011 Turks and Caicos Islands Constitution Order 2011 (SI 2011/1681) (Turks & Caicos Is), and this new constitution had minor differences over the 2006 Constitution, particularly, the 2011 Constitution does not contain an unqualified right to jury trial upon a criminal charge. This new clause initially appeared to have gone against conventional norms of jury trial on the islands, however Section 4 of the Trials without a Jury Ordinance 2010 (Turks and Caicos Islands) allows a trial to be heard by a judge alone ‘if the interests of justice so require’. The 2010 Ordinance was part of the reform packages introduced by London prior to the restoration of self-rule under the 2011 constitution. In Misick, the appellant’s arguments were rejected by the JCPC. Because the main appellant in the case was a Premier for Turks and Caicos and their main objection was that under Section 6(1) of the 2011 Constitution the judge did not have sufficient security of tenure and that he failed to raise questions of reasonable doubt prior to the decision on trial without a jury. The JCPC explained that Section 83(1) of the Turks and Caicos Constitution applied to the judge regardless of the fact of whether he had security CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL tenure or not as it would apply to any other judge. The differences with the 2006 and 2011 constitutions is that while the 2006 Constitution had provided under Section 6(2)(g) for the unqualified right to jury trial upon a criminal charge, this was no longer the case in the 2011 constitution. Instead, the 2010 Ordinance provides for a judge to order a trial without a jury it is in the interest of justice. In effect, London upon the restoration of self-rule, removed the right to trial by jury from the original constitution and leaving it to be decided judge to decide on such matter.

D. Critical Assessment 43 The JCPC and its rulings remain a strong accelerator of the common law overseas. Recent scholarship, however, points to its ‘temporal warp’ and that its ‘transnationally binding precedent’ have created a ‘fossilization of constitutional understandings associated with earlier precedents where the JCPC no longer sits or the constitution has changed’ (Robinson and Bulkan 395). Such a view is not new, as ex-dominions, and colonies of the British Empire, such as Canada, Australia, India, and Ireland also made similar arguments during their legislative and legal battles to part company with the JCPC. Therefore, despite its long and illustrious history, the JCPC is seen as the last remnant of judicial imperialism in countries where it has jurisdiction. Yet, the JCPC continued usefulness for these countries such as those in the Caribbean Commonwealth nations is not so much to the benefit of those nations, but to that of the UK itself. This is so, given that, from the British point of view, the lack of a written constitution in the UK allows the JCPC to function as a supreme constitutional arbiter and judicial reviewer of the constitutive legislative process in the former colonies and other states with a right of appeal to the JCPC. 44 Furthermore, the JCPC acting as the final appellate court for nations such as those in the Commonwealth Caribbean allows the JCPC to implement European legal standards (to the extent the UK’s membership in the EU is valid) that are applied in the UK, also to overseas jurisdictions, where the JCPC is the final appellate court. In other words, the JCPC would often take into consideration decisions made by the courts in Strasbourg and Luxembourg in their decisions relating to appeals from the Commonwealth Caribbean nations. Thus, at least, in contemporary times, the JCPC also serve as a conduit for the transposition of European legal standards directly into non-European jurisdictions in the Commonwealth Caribbean nations. After the Human Rights Act: 1998 (UK) went into force in 2000 the JCPC considers European human rights standards given that Section 4(5) of the Human Rights Act requires the JCPC to rule on any form of incompatibility in exercising its jurisdiction. In other words, functioning as a court, the JCPC, has the power to determine if British law is compatible with the ECHR or declare such law incompatible in overseas jurisdictions. This would be at the expense of parliamentary legislations from overseas jurisdictions such as Caribbean commonwealth countries. CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL 45 Nevertheless, the JCPC still remains an important forum for the maintenance and development of common law beyond the British Isles. In recent times, the importance of the JCPC has also been gradually making inroads into the domestic legal situation in the UK, or at least, that is the impression in Willers v Joyce (2016) (UK), where the UKSC recognized the importance of the JCPC for the coherence of the common law. In that decision, the Supreme Court essentially acknowledged that the JCPC can rule that a Supreme Court decision had a number of fault lines. From a constitutional point of view, the important question that Willers v Joyce (2016) (UK) raised was the question of authority. This is so, given that the mandate of the JCPC is for mostly overseas jurisdictions and not England and Wales.

SELECT BIBLIOGRAPHY Bentwich, N, ‘The Judicial Committee of the Privy Council as a Model of an International Court of Human Rights’ (1948) 2.3 ILQ 392. Burnham, M, ‘Indigenous Constitutionalism and the Death Penalty: The Case of the Commonwealth Caribbean’ (2005) 3.4 ICON 582. Clarry, D, ‘Institutional Judicial Independence and the Privy Council’ (2014) 3.1 Cambridge Journal of International and Comparative Law 46. Gadois, GH, ‘Evolution of the : A Historical Footnote’ (1963) 5.1 Journal of the Indian Law Institute 19. Herman, MJ, ‘The Founding of the Supreme Court of Canada and the Abolition of the Appeal to the Privy Council’ (1975) 8 Ottawa Law Review 7. Hortsman, A, ‘A New Curia Regis: The Judicature of the House of Lords in the 1620s’ (1982) 25.2 The Historical Journal 411. Hogg, PW, ‘Canada: From Privy Council to Supreme Court’ in Goldsworthy, J, (ed.), Interpreting Constitutions: A Comparative Study (OUP 2006) 55. Jones, DL, ‘The Judicial Role of the House of Lords before 1870’ in Bloom-Cooper, L, Dickson B, and Drewry, G, (eds), The Judicial House of Lords 1876–2009 (OUP 2009) 3. Mohr, T, ‘Law without Loyalty: The Abolition of the Irish Appeal to the Privy Council’ (2002) 37 Irish Jurist 187. Muller, HW, ‘Bonds of Belonging: Subjecthood and the British Empire’ (2014) 53.1 Journal of British Studies 29. Neuberger, D, ‘The Judicial Committee of the Privy Council in the 21st Century’ (2014) 3.1 Cambridge Journal of International and Comparative Law 30. Rediker, E, ‘Courts of Appeal and Colonialism in the British Caribbean: A Case for the Caribbean Court of Justice’ (2014) 35.1 MichJIntlL 213. Robinson, T, and Bulkan, A, ‘Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights’ (2017) 80.3 ModLRev 379. Vasciannie, S, ‘The Decision of the Judicial Committee of the Privy Council in the Lambert Watson Case from Jamaica on the Mandatory Death Penalty and the Question of Fragmentation’ (2009) 41.4 NYUJIntl&Pol 837.

SELECT CASES Abbott v Attorney General of Trinidad and Tobago [1979] 1 WLR 1342 (Privy Council). Andy Mitchell and Others v Director of Public Prosecutions and Another [1986] AC 73 (Privy Council). CONSTITUTIONAL ADJUDICATION OF THE PRIVY COUNCIL

Attorney General of British Columbia v Attorney General of Canada and Others [1937] UKPC 8 (Privy Council). Attorney General of British Columbia v Attorney General of Canada and Others [1937] UKPC 9 (Privy Council). Attorney General of British Columbia v Attorney General of Canada and Others [1937] UKPC 10 (Privy Council). Attorney General of Canada v Attorney General of Ontario and Others [1937] UKPC 6 (Privy Council). Attorney General of Canada v Attorney General of Ontario and Others [1937] UKPC 7 (Privy Council). Attorney General of Ontario v Attorney General of Canada and Others [1937] UKPC 11 (Privy Council). British Coal Corporation v the King [1935] UKPC 33 (Privy Council). Campbell (Noel) v The Queen [2010] UKPC 26 (Privy Council). Channing Arnold v The King-Emperor [1914] UKPC 28 (Privy Council). Christian v Corren [1716] 1 P Wms 329 (UK). Colonial Sugar Refining Company Ltd v Attorney General for the Commonwealth (1913) 17 CLR 644 (Privy Council). De Freitas v Benny [1976] AC 239 (Privy Council). Henrietta Muir Edwards and Others v Attorney General of Canada [1929] UKPC 86; [1930] AC 124 (Privy Council). Independent Jamaica Council for Human Rights (1998) Ltd and Ors v Marshall-Burnett and Anor (2005) UKPC 3 (Privy Council). Lambert v The Queen (Attorney General for Jamaica Intervening) [2004] UKPC 34; [2005] 1 AC 472 (Privy Council). Lewis and Others v Attorney General of Jamaica [2000] UKPC 35; [2001] 2 AC 50 (Privy Council). Misick and Others (Appellants) v The Queen (Respondent) (Turks and Caicos) [2015] UKPC 31 (Privy Council). Moore v Attorney General for the Irish Free State [1935] AC 484; [1935] IR 472 (Privy Council). Pratt and Morgan v Attorney General for Jamaica and Another [1993] UKPC 1; [1994] 2 AC 1 (Privy Council). Riley v Attorney General of Jamaica [1983] 1 AC 719 (Privy Council). Scott (Appellant) v Attorney General and another (Respondent) (Bahamas) [2017] UKPC 15 (Privy Council). Sir John Freyer v Bernard [1724] 2 P Wms 261, 24 ER 722 (UK). Viro v The Queen [1978] 141 CLR 88 (Austl). Willers v Joyce [2016] UKSC 44 (UK).

July 2018