Editorial: The people’s court

Later this year, on November 6 to be precise, two of our regional neighbours, Grenada and Antigua & Barbuda, will decide, by way of referendum, whether their litigants will accede to the appellate jurisdiction of the Caribbean Court of Justice [CCJ] in preference to the Judicial Committee of Her Majesty’s Privy Council that currently constitutes their highest tribunal.

That what is a relatively straightforward sovereign decision has to be made in this way is owed to the Constitutions of both jurisdictions, or, rather the Schedules to their respective Independence Orders-in-Council of the British Monarch, that provides for the deepest level of entrenchment should any alteration be contemplated in this context.

Thus the Antigua and Barbuda Constitution stipulates where relevant at section 47 (5)-

“A bill to alter this section, Schedule 1 to this Constitution or any of the provisions of this Constitution specified in Part I of that schedule …shall not be submitted to the Governor-General for his assent unless

(a) there has been an interval of not less than ninety days between the introduction of the bill in the House and the beginning of the proceedings in the House on the second reading of the bill in that House;

(b) after it has been passed by both Houses of Parliament or, in the case of a bill to which section 55 of this Constitution applies, after its rejection by the Senate for the second time; and

(c) the bill has been approved on a referendum, held in accordance with such provisions as may be made in that behalf by Parliament, by not less than two- thirds of all the votes validly cast on that referendum…”

Included among the specified provisions in Part 1 of Schedule 1 is that which confers a right of appeal to Her Majesty in- Council, either as of right or with the leave of the Court of Appeal in certain cases. This is to be contrasted with the original Barbadian provision that appears to have presumed the future existence of an entity such as the CCJ. According to section 86 of the original 1966 instrument-

“Notwithstanding anything contained in Part 1 of this Chapter, Parliament may make provision -

a. for implementing arrangements made, between the Government of Barbados and the Government or Governments of any other part of parts of the Commonwealth relating to the establishment of a court of appeal to be shared by Barbados with that part or those parts of the Commonwealth, and for the hearing and determination by such a court of appeals from decisions of any court in Barbados; or

b. for the hearing and determination of appeals from decisions of any court in Barbados by a court established for any other part of the Commonwealth….”

These contrasting provisions lead inexorably to the conclusion that the two jurisdictions in question were afforded differing levels of sovereignty so far as the determination of their highest appeal court was concerned. The Barbados and Antigua and Barbuda Constitutions are fifteen years apart but we do not know to what extent this gap might have informed the variation. Might it have been the levels of negotiation engaged in by the officials? We do not know and, unfortunately, no memorandum of the matter appears to exist today.

In any event, we wish the people of Grenada and Antigua & Barbuda discernment as they make their choice on November 6. The contending arguments are well rehearsed but we are most swayed by the notion that each of the three branches of the State the executive, legislative and judicial should be domestically located. Sovereignty demands no less.

Barbados Advocate

Mailing Address:
Advocate Publishers (2000) Inc
Fontabelle, St. Michael, Barbados

Phone: (246) 467-2000
Fax: (246) 434-2020 / (246) 434-1000