The privy council or a Caribbean final court of appeal?

AuthorHugh A. Rawlins
PositionB.A.; LL.B.; LL.M.; Banister and Solicitor, Lecturer in Law, University of the West Indies; formerly Solicitor General of St. Kitts (St. Christopher) and Nevis, West Indies
So very often we allow the memory of persons who have made
worthy sacrifices for the general good and for the upliftment of our
societies to pass into oblivion unheralded and unsung. It is therefore to
the credit of the patrons of this Centre of the University of the West
Indies that the memory of F.O.C. Harris is being cherished and
revered. It must have occurred to us by this time that strong and
lasting national or regional institutions can only be erected upon such
sacrifices which are born of goodwill, discipline and hard work.
It is a signal honour for me to deliver the inaugural lecture in this
series for two reasons. First, the pride which it gives to be associated
with the memory of the late Francis Otho Coleridge Harris, Q.C.;
B.C.L.; M.A.(Oxon), whose contribution to Dominica and to the
Commonwealth Caribbean1 and to the Commonwealth is worthy of
emulation and praise. As you are aware, Mr. Harris was a leading
member of the honourable and noble legal profession. He was a
draftsman whose contribution to legislative drafting in the Caribbean
is immeasurable. He served the United Nations Development
Programme (U.N.D.P.) for many years as a Law Revision expert in
developing countries. At the time of his passing, on 26 March, 1989,
This is a partially revised version of the First F.O.C. Harris Memorial
Lecture, delivered at the University Centre, Dominica, West Indies on 29
February, 1996. The revision has been made for the purpose of putting the
presentation into publishable form while, as far as possible, retaining the
format of a lecture. Comments which were made after the lecture and
which have been drawn upon in this version are acknowledged herein.
B.A.; LL.B.; LL.M.; Banister and Solicitor, Lecturer in Law, University
of the West Indies; formerly Solicitor General of
Kitts (St. Christopher)
and Nevis, West Indies. I am grateful to Mrs. Edith Bellot-Allen, the
Resident Tutor at the University Centre, and the organising committee for
having afforded me the opportunity to deliver the lecture.
1 The words "Commonwealth Caribbean" and " Caribbean" are used
interchangeably herein. The reference is to the territories of the Caribbean
which were former colonies of the United Kingdom and which have
attained independence. They are all members of the Commonwealth.
and for the preceding four years, he had the charge of
of the 1990 Revised Edition of
Laws of Dominica. His nephew Mr.
Ray Harris, the Law Revision Commissioner of Dominica saw it
through to completion, F.O.C. Harris was also a legal educator. I am
advised that in his latter years F.O.C. Harris gave unstinting service
to this Centre. In this regard he lent his last energies, particularly to
the teaching of the subjects for the first year Bachelor of Laws
programme of the University of the West Indies. He did this gratis.
Mr. Harris also contributed financially to the education of
is pleasing to note that some of the beneficiaries of his philanthropy are
present tonight. He
also an eminent jurist. In the early years of the
independence experience in Africa, he answered the call to serve as a
Judge and Law Revision Commissioner there. He would no doubt look
kindly on this tribute and find this particular topic very appropriate for
this occasion.
In the second place, this exercise affords me an opportunity to
engage in meaningful dialogue with a wider Caribbean audience on a
subject which, although it is of critical importance to us in this
diaspora at this juncture, has for many years been treated either as an
intellectual debate for academic gratification or as a political or
administrative exercise for the agenda of regional meetings.
Initially, the request was for the presentation of a lecture on the
abolition of appeals to the Privy Council. However, from my former
association with the subject, a certain mind-set had already developed
which causes me to prefer to focus on the setting up of
court of final
appellate jurisdiction within the Commonwealth Caribbean2 rather than
on the abolition of appeals to that august body which, in the main, has
served us with distinction. This mind-set was not affected by the
formal letter of invitation which suggested as the topic: "The Privy
Council vs. The Caribbean Court of Appear,
It is my intention to focus on two main questions. First, is there a
sound case for a Caribbean Court of Appeal? Second, if there is, is
there the will to institute it? Before attempting to consider these
questions, however, it will be helpful to consider briefly the
antecedents of the Privy Council which now serves as the highest
appellate body for all Commonwealth Caribbean jurisdictions except
2 Hereinafter referred to as "the Caribbean Court of Appeal".
Guyana. Grenada wandered from its fold for a brief period3 following
the 1979 coup d'etat which displaced the Government and the 1973
Independence Constitution of that country, but it has recently returned
jurisdiction of
Privy Council.4 A knowledge of
background of the Privy Council can in some measure put the
considerations of the setting up of a Caribbean Court of Appeal into
proper perspective.
Lloyd Barrett, in his seminal work on the Constitution of Jamaica,5
indicates that the Privy Council is derived from the residuary
jurisdiction which the Sovereign as the fountain of justice possessed
over all British subjects. In its formative years, the Privy Council was
an important instrument of English government. It was directly
responsible for the majority of the administrative functions of that
government.6 It conducted its work by means of a system of
Committees, one of which was the Committee for Trade and Foreign
Plantations. It was to this Committee7 that petitions from what became
known as the British Empire were directed.
From earliest times, the Privy Council exercised some judicial
functions. However, in 1640, during the Civil War in England, it lost
this jurisdiction and its judicial function was confined mainly to
3 Grenada abolished appeals to the Privy Council by The Privy Council
(Abolition of Appeals) Law, 1979 (Peoples Law No 84 of 1979), s.2.
This was confirmed by Act No.l of 1985, s.2. The Privy Council itself
upheld the validity of that legislation in Andy Mitchell and Others v, The
D.P. P.(1986) L.R.C. (Const.) 35; (1986) A.C.73.
4 By the Constitutional Judicature (Restoration) Act,
of 1991 and the
West Indies Associated States Supreme Court (Grenada) Act (Re-
enactment) Act, No.20 of 1991.
5 The Constitutional Law of Jamaica, Oxford University Press, 1977, at page
Louis Blom-Cooper and Gavin Drewry, in Final Appeal: A Study of the
House of Lords in Its Judicial Capacity, indicate. at p. 103. that the Privy
Council and the House of Lords share a common ancestry, being direct
descendants of the judicial and legislative powers originally vested
exclusively in the King in Council.
7 In those early times it was comprised of 5 or 6 persons, 1 or 2 of whom
were lawyers.

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