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The Past and Future of the World’s Smallest Global Court: Comments on Tracy Robinson and Arif Bulkan, ‘Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights’ (2017) 80(3) MLR 379–411

Robinson and Bulkan make a convincing case that the past and present of Judicial Committee of the Privy Council is of great concern for the future constitutional orders of the Caribbean, Commonwealth and United Kingdom. This note further explores the historical context to understand that future and its politics.

Coel Kirkby

In the early 1960s the winds of progress blew across the shores of the Aral Sea. The Soviets had a great plan for the transformation of nature by damming great rivers to make the desert bloom with cotton. After a half century of desiccation, the surface area of the Aral Sea was reduced by three-quarters (from its maximum area equal to Scotland minus Northern Ireland). Today its dry seabed is a white desert riven by the rusting hulks of fishing ships—fossils testifying to a diluvial past lost but not forgotten.

Just as the Soviets began their great experiment, Harold Macmillan declared that a ‘wind of change’ was blowing through Africa and across the globe. Over the next several decades the British Empire would shrink at an even faster rate than the Aral Sea as a vast majority of its overseas territories gained independent statehood. As a result, the imperial jurisdiction of the Judicial Committee of the Privy Council (‘JCPC’ or ‘Judicial Committee’) dried up dramatically.[1] If the population subject to its jurisdiction in the early twentieth century were the size of the Aral Sea, by the twenty-first century it was only three Lochs Lomond. In other words, the JCPC now hears appeals from an overseas population only slightly larger than that of Scotland.

The incredible shrinking jurisdiction of the Judicial Committee is a subject of understandable importance to Tracy Robinson and Arif Bulkan, themselves Lomondian legal scholars from Caribbean states. Their article seeks to convince us that the fate of the JCPC is also of consequence for those of us in the United Kingdom and the Commonwealth of Nations. They succeed in two ways. First, they make a convincing—if conventional—case that the JCPC has failed to adequately interpret the bills of rights in the Caribbean countries still subject to its jurisdiction. Second, they demonstrate the inherent intellectual value of studying this curious and peerless judicial body. In this comment I will eschew a normative critique of the authors’ argument to instead place it in its historical context and then consider its implications for the future of legal orders in the Caribbean, Commonwealth and United Kingdom.

 

The Judicial Committee and Its New Critics

Robinson and Bulkan make a simple and limited normative claim: the Judicial Committee fails to adequately interpret the bills of rights in Caribbean constitutions. Their argument is correspondingly straightforward and persuasive.[2] The JCPC has developed a specific jurisprudence on the interpretation of an opening section of bills of rights. These sections share a family resemblance derived from their common genesis in the independence-era constitutions: ‘Whereas every person in [X country] is entitled . . . to each and all of the following [rights]’. The authors show that the Judicial Committee has narrowly interpreted this section as a ‘mere preamble’ that is neither justiciable in itself nor connected to the specific enumerated rights that follow (at page 387). As a result, the Caribbean bills of rights offer relatively limited protections to individuals. Robinson and Bulkan conclude by proposing a broader, constitution-specific interpretation that reads the opening section together with specific rights to provide stronger protections for individuals.

The argument is compelling in part because the judges of the Judicial Committee and the Caribbean courts all agree with the authors’ conclusion that local courts are better placed to interpret Caribbean constitutions. In recent years its judges—who are also now ex officio judges of the Supreme Court—have consistently made public statements lamenting the burden of their JCPC duties. Lord Hoffman, for instance, found it ‘extraordinary’ that he only visited Trinidad and Tobago in 2003 (quoted at page 400). Perhaps even more remarkably, the JCPC had never sat overseas until 2006 in the Bahamas. The authors and the Caribbean judges they cite also find it astonishing that the Judicial Committee still rules over these independent states when they can devote so little time and command so few doctrinal details.

If everyone agrees, then why all the fuss? To start unravelling this paradox of agreement, we must first step back nearly two centuries. The Judicial Committee of the Privy Council was established in 1833 as a court of appeal for the overseas territories of the British Empire. Yet it was not exactly a court. It was rather a committee of the Privy Council whose members sat to hear cases from colonial courts and then give a unanimous (after 1878) ‘report’ to His Majesty in Council. ‘Even to-day,’ wrote the Viscount Haldane of Cloan in 1922, ‘there is always a chair left vacant, for a very highly constitutional reason—the Sovereign is supposed to come and sit there, and dispense justice to the whole Empire.’ As we shall see, the present-day import of this legal fiction—and its recent disposal—should not be underestimated.

Over its 184 years the Judicial Committee’s cramped and dark room at 10 Downing Street has been an important site for the great ideological battles over the nature and future of the British Empire and its successor states. We can better appreciate the stakes in the current Caribbean context by sketching two such contests.

The first contest concerned Joseph Chamberlain’s dream of a ‘Greater Britain’ constituted through imperial federation. He proposed an Imperial Council that would act as a quasi-parliament for the Empire, as well as merging the JCPC and House of Lords into a single imperial court of appeal for the United Kingdom and its overseas dominions. At the 1907 Colonial Conference the settler colonies’ responses ranged from keen to cool.[3] The Australians and Kiwis supported the proposal while the Canadians were non-committal. There was more disagreement among the South African delegates. While the Cape Colony supported the idea, the Transvaal would only commit to a unified court of appeal for the South African colonies. Chamberlain’s proposal soon fell out of favour, but his vision of an imperial government including a single court of appeal was a real possibility for a few brief years. Crucially, it would form the imaginative horizon against which the settler colonies would form and assert their own visions of self-rule.

The second contest concerned the Canadian government’s attempt to sever the appellate jurisdiction of the Judicial Committee. Cairns famously traced how two nationalist factions competed against each other through a proxy battle at the JCPC in the early-mid twentieth century. The ‘fundamentalists’ argued for a conservative and technical interpretation of the British North America Act of 1867, while the ‘constitutionalists’ argued for a progressive and expansive interpretation. Despite their disagreement, both factions agreed that the Judicial Committee had erred by interpreting the Act so as to produce a weak and poorly resourced central government. The tension between the constitutionalists and the fundamentalists came to a head in Nadan v The King in 1926. The Judicial Committee held that Canadian government could not abolish appeals to the imperial court without express legislative provision by the Westminster parliament (a decision taken in part with the intention of constraining the Irish Free State). The furious reaction by Canada (supported by the Irish and settler Dominions) precipitated the Balfour Declaration 1926 and then the Statute of Westminster 1931, which established a radical new imperial constitutional order of ‘autonomous Communities . . . equal in status’.

 

Constitutionalists versus Populists

Let us now jump forward to the recent past in the Caribbean. Robinson and Bulkan make an apparently straightforward and convincing critique on the narrow question of the Judicial Committee’s interpretive approach regarding bills of rights. Yet a closer look at the form and structure of their argument suggests a more complicated postcolonial politics. Barbados, Guyana, Jamaica, and Trinidad and Tobago signed the Treaty of Chaguaramas to create the Caribbean Community and Common Market (‘CARICOM’) in 1973—the same year that the United Kingdom joined the European Community. The principle aim of the regional union was to promote the economic integration of its member states on the European model. After two decades of little progress, CARICOM finally implemented its plan with the Caribbean Single Market and Economy (‘CSME’) in 2006. A key institution supporting the common market was a new Caribbean Court of Justice (‘CCJ’) with two distinct jurisdictions: (i) an original jurisdiction to interpret and apply the Revised Treaty of Chaguaramas (2001) and (ii) an appellate jurisdiction as final court of appeal in civil and criminal matters for member states.

In Cairns’ spirit, I will propose two (admittedly crude) labels for the factions contesting the future constitution of Caribbean states. The authors and the local judges they cite with approval might be the ‘constitutionalists,’ those committed to a broad and generous interpretation of national constitutions—especially bills of rights.[4] Against them are the ‘populists,’ the politicians and people calling for stronger executive power freed from Judicial Committee constraints. Over the last two decades the constitutionalists and populists have waged a proxy war at the JCPC—exemplified by the question of the death penalty. With the imminent end of appeals to the Judicial Committee, this battleground is about to permanently shift to the CCJ.

There are good reasons for reading Robinson and Bulkan’s critique of the Judicial Committee as a pre-emptive strike by constitutionalists against populists. There is no pressing need to critique the Judicial Committee since almost every Caribbean country either has or is in the process of ending appeals to it.[5] The authors’ real concern is the CCJ. As a nascent jurisdiction, the CCJ is now open to academic influences on its future interpretive approach. Moreover, while it is modelled in part on the European Courts of Justice and Human Rights, the CCJ does not adjudicate a distinct source of transnational legal rights (like the European Convention on Human Rights). Thus the authors’ critique of the JCPC provides a powerful indirect argument for the CCJ to adopt a broad interpretive approach rather than follow the Judicial Committee’s narrow interpretive approach.

We can now sketch the two key argumentative strategies used by Robinson and Bulkan and how these strategies might influence a future CCJ interpretive approach—and thus shape the very constitution of a future Caribbean union. Their argument blends together a logical critique of the Judicial Committee’s comparative and classificatory method with a rhetorical attack on the JCPC as an anachronistic institution.

The authors develop their logical argument by showing how the Judicial Committee has come to prefer the interpretations of the specific provisions of a constitution by comparing similar and different provisions in other constitutions—what the authors call ‘a form of constitutional noscitur a sociis’ (page 391). The class of comparative constitutions includes not only those of states under its current jurisdiction but also those that were once so. The authors show how this ‘collapses time’ by (i) ‘fossilising’ older precedents created in now defunct jurisdictions and (ii) interpreting older provisions in comparison to new provisions in other constitutions. In this persuasive reading, the JCPC’s method of ‘transnationally [and anachronistically] binding precedent’ is an interpretation of constitutional provisions against similar provisions that either did not exist or are now extinct. The authors show how this interpretive approach leads to a uniformly narrow reading of bills of rights and the protections they provide.

The authors propel their logical critique with metaphors of time. The jurisdiction of the Judicial Committee is ‘declining’, ‘ebbing’, ‘receding’ and ‘waning’, while its interpretative method is ‘fossilised’, ‘sluggish’ and in a ‘temporal warp’. The first set of verbs suggest not only a material decrease or reduction, but also a moral falling or failing. By using these words in a post-imperial context, the authors imply not only that the jurisdiction of the Judicial Committee has declined, but that that decline is a morally just outcome. Thus the JCPC’s jurisprudence on bills of rights is a ‘fossilised’ remnant as out of place in the present as a ship rusting in the desert.

The authors’ persistent use of declinist imagery appeals to long-standing ideas of imperial time as cycles of rise and decline. In Edward Gibbon’s classical treatment, for instance, the cyclical movement of history is moral as well as material as a people first rise through virtue and then decline through moral decay. The inevitability of decline drives the reader towards the authors’ normative conclusion: just as the archaic and corrupted jurisdiction of the JCPC declines, so will that of the CCJ rise with the promise of a more morally worthy legal order for the Caribbean people. For Robinson and Bulkan this new order will only fully flourish if the CCJ is dominated by virtuous constitutionalists.

 

The Politics of the Rule of Law

We can now return to the paradox of agreement. Why does the Judicial Committee agree with its critics that it is an anachronistic jurisdiction that should be extinguished? I will suggest that this puzzle is better explained by its judges’ domestic worries than their concern for the fate of Caribbean peoples. Just as in the past the Judicial Committee proves a powerful mirror to reflect on the nature and future of the constitution of the United Kingdom.

In the last decade the British judicial system has been radically restructured. The Constitutional Reform Act 2005 created a new Supreme Court as the final court of appeal for (almost) all civil and criminal appeals in the United Kingdom. As part of this reform, the Judicial Committee was remade in the Supreme Court’s image: (i) concurring decisions were permitted, (ii) the courts’ judges were (for the first time) the same, and (iii) the courts were housed in the same building. This institutional merger corresponded to a jurisprudential rapprochement as the judges sitting in either body increasingly appealed to the principle of the ‘rule of law’ to justify expanding judicial power in the Supreme Court while restricting it in the JCPC.

The Judicial Committee increasingly appeals to the rule of law to justify its narrow interpretive approach and to excuse its continued appellate jurisdiction. Robinson and Bulkan spend a great deal of time explaining the ‘anomaly’ in Lewis, the one exception to the Judicial Committee’s refusal to read the opening section of bills of rights broadly (pages 399-400). In this death penalty case the majority chose to treat an opening section as enforceable. The authors rightly critique Lord Hoffman’s inconsistent reasoning in his dissenting opinion. However, they fail to remark on how Lord Hoffman ultimately justifies himself against the majority by arguing that ‘the rule of law itself will be damaged and there will be no stability in the administration of justice in the Caribbean.’ (Lewis at [116])

Judges also increasingly appeal to the rule of law to defend (their vision of) their constitutional roles in both the Supreme Court and JCPC. Most judges subscribe to the late Lord Bingham’s idea of judges as the upholders of the rule of law—the principal and principled constitutional check on the democratic sovereignty of Parliament. For example, both Lord Neuberger and Lady Hale have recently described the two pillars or planks of the unwritten Constitution as ‘democracy’ and the ‘rule of law’. Nonetheless, the courts have endured rising populist attacks at home and abroad despite the intent of the Constitution Reform Act 2005 to create greater judicial legitimacy. Lord Neuberger appealed to the rule of law in a remarkable public defence of judges against one especially ferocious attack. Judges have likewise used the rhetoric of the rule of law justify the legitimacy (or not) of overturning popular Caribbean laws in recent Judicial Committee decisions.

The growing prominence of the rule of law has three important consequences for the future legal orders of the United Kingdom and the Commonwealth. First, the reformed Judicial Committee does and will constrain the possible futures of the Caribbean legal order. In 2005 the Judicial Committee held that Jamaican laws establishing the CCJ as the final court of appeal (and ending appeals to the JCPC) were void since they did not follow the appropriate constitutional amendment procedure. Curiously, the judges prefaced their decision with a claim that the JCPC, ‘sitting as the final court of appeal of Jamaica, has no interest of its own in the outcome of this appeal.’ (at [4]). They added that the court only ‘exists in this capacity to serve the interests of the people of Jamaica’ and would cease to do so as soon as the people so decided (at [4]). Thus the Judicial Committee now justifies its jurisdiction as an open-ended agreement with a national people for an impartial application of the rule of law (in often explicit contrast to an earlier era of unilateral imperial interference in national self-determination).

In its recent decisions the Judicial Committee assumes that the Caribbean states are inexorably moving towards the end point of imperial time: national self-determination. Yet in actual fact the Caribbean states are working towards regional union. This contradiction has important implications for the future Caribbean legal order. Robinson and Bulkan show how the judges’ narrow interpretive method—as opposed to the broad method favoured by the authors—favours the populists’ vision of a minimally constrained legislature and executive. Moreover, Caribbean judges operate within CARICOM where the CCJ does not have jurisdiction to adjudicate a regional human rights convention (contrast this with the JCPC judges’ experience in the EU where the Supreme Court and European Court of Human Rights both adjudicate rights of the European Convention).[6] The new idea of the Judicial Committee as mirror of the Supreme Court ultimately threatens to undermine the precarious promise of the CCJ: by justifying the Judicial Committee as an impartial dispenser of the rule of law, the judges have created an alibi for a narrow constitutional interpretation that favours a future Caribbean legal order dominated by the populists over the constitutionalists.

Second, as Britain turns from a European future to an Anglosphere past, the rule of law promises to be the defining feature of its new relationship with Commonwealth countries. The judges of the Supreme Court and JCPC are the vanguard of this global rule of law movement, which is part evangelical and part entrepreneurial. It is evangelical since it offers a utopian and universal vision of peoples adhering to a single doctrine. It is entrepreneurial since it promotes a corresponding global capitalist enterprise of free markets and movement. Indeed, the late Lord Bingham, a leading proponent of the rule of law, defended it in part as essential to ensure foreign direct investment (38). His ‘thick’ vision of the rule of law lives on in the Bingham Centre for the Rule of Law, especially through its work with nine major international corporations. In recent years both the Commonwealth and CARICOM have taken up this vision of the rule of law to promote reforms to business and investor law.[7] In this context the rule of law offers a prophetic and practical ideology for a post-Brexit global order that insulates the legal rights of transnational capital from populist anger in the Commonwealth.

Finally, the nature of rule of law and its relation to judicial power is only the latest constitutional contest to be fought by proxy in the Judicial Committee. In a sense the 2005 constitutional reforms succeeded where Chamberlain failed by creating a single court. But the Supreme Court is rather different than a single imperial court of appeal. First, its jurisdiction is limited to the United Kingdom (now including devolution issues) with the Judicial Committee retaining jurisdiction in former colonies and other overseas territories. We have seen how most judges now defend the two courts’ legitimacy as the upholders of rule of law at home and abroad. To critics like John Finnis, however, this ‘thick’ concept of the rule of law is a betrayal of its proper conception as a principle subservient or complementary to the ‘traditional’ constitutional order of a sovereign Parliament bound only by its own rules. In the halcyon light of the conservative legal imagination, the unbroken pedigree of the ancient constitution justifies the moral necessity of a self-restraining judiciary.[8]

At the heart of modern British constitutional law is a contest between a ‘thick’ concept of the rule of law favoured by Bingham and a ‘thin’ one favoured by Finnis. While the question of the nature and limits of judicial power is an old one, Brexit raises the stakes and changes the terms. In the near future Supreme Court judges may lose a powerful tool to restrict legislative and executive authority if the Human Rights Act is amended, repealed or replaced. Brexit also intensifies constitutional struggles between the United Kingdom’s constituent nations. In 2005 (effective 2009) the Supreme Court took over ‘devolution issues’ from the Judicial Committee, but has yet to deal with any major constitutional question regarding devolution. A ‘thick’ concept of the rule of law thus provides a form of jurisprudential insurance for the Supreme Court as a home-grown and ultimate constitutional principle to check the fractious union of resurgent legislatures in Westminster, Holyrood, Cardiff Bay and Stormont.

Let me conclude by revisiting the legal fiction that the Judicial Committee is a direct appeal to the justice of the sovereign. In a sense not always fully appreciated, this body exercised the greatest surviving prerogative power. Even if the sovereign’s justice was a fiction, it was one that the Judicial Committee used to justify significant interventions in the constitutions of colonies and their successor states over nearly two centuries. A few years ago, Lord Neuberger renounced this long-standing ‘imperial aim’ in favour of a vision of the JCPC as ‘an appellate court which serves . . . the rule of law’. He added with pride that a visitor to the Judicial Committee’s new home in the Middlesex Guildhall will no longer find an empty seat for the sovereign. The missing seat signifies nothing less than a recent judicial act to supplant the unbound sovereign with the rule of law. The Supreme Court affirmed its daring deed by taming the executive in the Miller case, but its consequences for the future of the United Kingdom and the Commonwealth remain as unforeseeable as the damming of rivers flowing into the Aral Sea.

References

[1] In descending order of population, the remaining countries (excluding Crown dependencies and British Overseas Territories) are Jamaica, Trinidad and Tobago, Mauritius, The Bahamas, St Lucia, Kiribati, St Vincent and the Grenadines, Grenada, Antigua and Barbuda, St Kitts and Nevis, Cook Islands, Tuvalu and Niue.
[2] The authors provide an exhaustive account of the literature with one notable exception: A. W. B. Simpson’s study of the origins of bills of rights in the newly independent states of the Commonwealth. Simpson argues that the British government invented these bills—and their many exceptions—as a compromise between their duties under the European Convention on Human Rights and their practical difficulties in controlling the process of decolonization. See A. W. B. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (OUP, 2004).
[3] See generally D. B. Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833-1986 (Manchester University Press, 1987) chs 2–3.
[4] Robinson and Bulkan are among a group of local scholars calling for the CCJ to champion a ‘Caribbean jurisprudence’ (as opposed to one that is national or post-imperial): see, for example, D. S. Berry and T. S. Robinson (eds), Transitions in Caribbean Law: Law-Making, Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing, 2013).
[5] If the Caribbean countries follow through on their promises to end appeals, the Judicial Committee’s jurisdiction will shrink to a population less than a single Loch Lomond (in other words, less people than Northern Ireland). Its largest jurisdiction by population will be Mauritius (1.2 million) followed by Kiribati (113,400) and the Bailiwick of Jersey (100,080) and several more smaller still.
[6] CARICOM does have a Charter of Civil Society (1997) (see http://cms2.caricom.org/images/publications/12504/12060-charter_of_civil_society.pdf), but the human rights it enumerates are not explicitly justiciable. The CCJ does have original jurisdiction to adjudicate the Revised Treaty of Chaguaramas (2001) (see http://www.wipo.int/edocs/lexdocs/treaties/en/caricom/trt_caricom_2.pdf). However, this treaty only provides legal rights to corporations with the partial exception of the ‘right of establishment’ that is restricted to skilled nationals of member states (ch 3).
[7] On the rule of law in the Caribbean, see also D. M. Placid, ‘The Caribbean Single Market and Economy (CSME): Testing the Rule of Law in the Caribbean Economic Development Plan’ (2006) 16 Caribbean Law Journal 109.
[8] As a Canadian I cannot help but note that the staunchest critics of an ‘expansive’ judicial power hail from colonies with comparatively deferential appellate courts. Looking forward from the longue durée we see the old inter-colonial contests reproduced as Richard Ekins (see https://judicialpowerproject.org.uk/making-the-case-against-expansive-judicial-power/) and Jason Varuhas (see https://judicialpowerproject.org.uk/jason-varuhas-judicial-capture-of-political-accountability/) lead a new critique of judicial power targeting Supreme Court decisions that draw on ‘expansive’ judicial doctrines—like ‘proportionality’ over ‘Wednesbury unreasonableness’—developed by courts in Canada and South Africa (see http://www.administrativelawmatters.com/blog/2016/11/28/wednesbury-and-proportionality-where-are-we-now/).
Published 06.06.17
Response by Coel Kirkby
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