Gresham College Lectures

Should the Commonwealth Caribbean Abolish Appeals to the Privy Council?

May 31, 2022 Gresham College
Gresham College Lectures
Should the Commonwealth Caribbean Abolish Appeals to the Privy Council?
Show Notes Transcript

In the Commonwealth Caribbean, final appeals were traditionally heard by the Judicial Committee of the Privy Council, or ‘Her Majesty in Council’. Some islands have now replaced the Privy Council with the Caribbean Court of Justice as their highest court. The choice of highest court remains a controversial political issue in the Caribbean. While the Privy Council has deep colonial and imperial roots, it has sometimes been an important safeguard for fundamental rights: what are the pros and cons?

A lecture by Leslie Thomas QC

The transcript and downloadable versions of the lecture are available from the Gresham College website:

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- Welcome everyone, welcome to the last lecture of this series,

and it's a controversial one:

should the Commonwealth Caribbean abolish appeals to the Privy Council? In a previous lecture in this series, I talked about the constitutions of the Commonwealth Caribbean countries, and the effectiveness of human rights guarantees contained in those constitutions. Today, I want to talk about a topical and very controversial issue in the Commonwealth Caribbean, whether those countries ought to replace the Judicial Committee of the Privy Council with the Caribbean Court of Justice. First, let's take a look at the Judicial Committee of the Privy Council, what is it and why does it exist. The jurisdiction of the Judicial Committee of the Privy Council originates from the power of medieval English kings to administer justice with the advice of their council. Over time, the House of Lords became the highest court in England itself, but the king, with the advice of the Privy Council, served as the highest court for the Channel Islands, which were ruled by the English Crown, but were not part of England. As England acquired colonies abroad, the Privy Council also served as the final court of appeal from the colonial courts. The modern jurisdiction and powers of the Judicial Committee were prescribed by the Judicial Committee Act 1833, which is still in force. The composition of the Judicial Committee as we know it today dates from 1876. The Appellate Jurisdiction Act 1876 established the lords of appeal in ordinary, or law lords, who sat in the House of Lords as life peers, to hear appeals from English, Scottish, and Irish courts. By the same act, the law Lords were also members of the Judicial Committee of the Privy Council, to hear appeals from other parts of the British Empire As section of the British Empire expanded greatly during the 19th century, and you can see with this slide the reaches of the British Empire, so did the jurisdiction of the Judicial Committee. By the early 20th century, it was the highest court for a quarter of the world's population. In the 1930s and '40s, certain parts of the British Empire, known as dominions, became increasingly self-governing. These included Canada, Australia, South Africa, and New Zealand. In 1931, the Statute of Westminster gave the dominions new powers, including the power to abolish appeals to the Privy Council. In 1949, Canada became the first dominion to abolish appeals to the Privy Council. Later in the same year, India, which was in the process of becoming fully independent from the British Empire, also abolished them. South Africa abolished them in 1950, and Australia retained them until 1986. New Zealand retained them until it established its own supreme court in 2003. In the post-war decades, many territories which had been British colonies achieved independence within the Commonwealth. Some of these kept the British monarch as their head of state, represented by a governor general, which are known as Commonwealth realms, for example Jamaica, Antigua and Barbuda, others became republics, with a president as the head of state, for example Trinidad and Tobago and the Commonwealth of Dominica. The Judicial Committee continues to serve as the final court of appeal for many independent Commonwealth countries. It also serves as the final court of appeal for British overseas territories, such as Bermuda, the Cayman Islands, Anguilla, and Montserrat, and it serves as the final court of appeal for three British Crown dependencies, namely Jersey, Guernsey, and the Isle of Man. The Constitutional Reform Act of 2005 abolished the judicial functions of the House of Lords within the UK and replaced it with a new UK Supreme Court. However, the Judicial Committee was left intact. Since then the justices of the UK Supreme Court sit as members of the Judicial Committee of the Privy Council. Generally, the court system has three levels. Cases are heard in the first instance by a local superior court of the relevant country or territory, which may be called the high court, the supreme court, or in the case of Cayman Islands, the Grand Court. Appeals from that court are then brought to a local court of appeal. In the Eastern Caribbean, several countries and territories share the Eastern Caribbean Supreme Court, consisting of a shared high court and court of appeal. Appeals from local courts of appeal are brought to the Judicial Committee of the Privy Council. Formally speaking, in respective countries which have the Queen as head of state, the Judicial Committee serves as an advisory body to the Queen. At the end of each judgment, the Judicial Committee humbly advises Her Majesty to allow or dismiss the appeal. However, this is purely a formality. In reality, the Queen plays no role. The Caribbean Court of Justice. So that's the Judicial Committee of the Privy Council, what is the Caribbean Court of Justice? The Caribbean Court of Justice, or the CCJ, was established by an international agreement which entered into force in July, 2003. It was set up in Trinidad and Tobago in 2005

with two main functions:

first, it was to resolve disputes between member states of the Caribbean Community, or CARICOM, second, it was to replace the Privy Council as the highest court for members of the Caribbean Community. However, adoption of the CCJ as the highest appellate court has been slow. By 2009, only two states had adopted it as their highest court, that was Barbados and Guyana. A third state, Belize, joined them in 2010. In 2012, the prime minister of Trinidad and Tobago proposed adopting the CCJ as the highest court for criminal appeals only, while keeping the Privy Council for civil appeals, but this proposal turned out to be fraught with difficulties, as explained by John Jeremie SC, writing in "The Law Quarterly Review." For example, what would happen if a criminal appeal happened to raise constitutional issues? Trinidad and Tobago still has not adopted the CCJ as its highest court, although one more state, that is the Commonwealth of Dominica, did so in 2005. In Antigua and Barbuda, and Grenada, the voters rejected proposals in 2018, when there was a referendum to replace the Privy Council with the CCJ. At present, therefore, only four countries in the region have the CCJ as the highest court, Barbados, Guyana, Belize, and Dominica, the rest have all retained the Privy Council as their highest court. So why is this controversial, what's the controversy? On the one hand, supporters of the CCJ often argue for the necessity of breaking away from colonial rule and establishing a distinctive Caribbean jurisprudence. The argument was summed up eloquently by the Guyanese politician Sir Shridath Ramphal in a 2009 public lecture, quoted by Jeremie, quote, "It is almost axiomatic that the Caribbean Community "should have its own final court of appeal in all matters. "A century-old tradition of erudition and excellence "in the legal profession of the region "leaves no room for any hesitancy. "Ending the jurisdiction "of the Judicial Committee of the Privy Council "was actually treated as consequential "on Guyana becoming a republic 39 years ago. "I am frankly ashamed "when I see the small list of Commonwealth countries "that still cling to that jurisdiction, "a list dominated by the Caribbean. "Now that we've created our Caribbean Court of Justice "in a manner that has won the respect and admiration "of the common law world, "it is an act of abysmal contrariety "that we have withheld so substantially "its appellate jurisdiction "in favor of that of the Privy Council, "we who have sent judges "to the International Court of Justice, "to the International Criminal Court, "and to the International Court for the Former Yugoslavia, "to the presidency of the United Nations Tribunal "on the Law of the Sea, "we from whose Caribbean shores "have sprung the lineal descent "of the current attorney generals of Britain "and of the United States. "This paradox of heritage and hesitancy "must be repudiated by action, "action of the kind Belize has taken "to embrace the appellate jurisdiction of the CCJ "and abolish appeals to the Privy Council. "It is enlightened action "taken by way of constitutional amendment, "and Belize deserves applause "from the Caribbean Community, "not just its legal fraternity. "Those countries still hesitant "must find the will and the way to follow Belize, "and perhaps it will be easier if they act as one. "The truth is that the alternative to such action "is too self-destructive to contemplate. "If we remain casual and complacent "about such anomalies much longer, "we will end up making a virtue of them "and lose all we have built," end of quote. More concisely, as the Caribbean constitutional scholar Simon McIntosh put it, "So long as we remain the subjects of the British Crown "and its Judicial Committee "as the apex in the hierarchy of our legal system, "it is to be expected that our constitutional discourse "would reflect a cluster of values, intellectual orientations and practices "that carry a distinct British cast. "Our constitutional conversation "is carried out in a foreign voice. "We are either silenced "or are constrained to speak "within the institutions and traditions of interpretation "of the colonial constitutions "that have been imposed on us." So why then have most states not adopted the CCJ as their final court of appeal? The first thing to say is that proposals for constitutional reform in the Commonwealth Caribbean are usually rejected. Commonwealth Caribbean constitutions are generally strongly entrenched, and can only be amended by means of a referendum, which, in some countries, requires a super-majority. This makes it very difficult for a government to pass constitutional change without opposition support, which is usually not forthcoming. As Derek O'Brien pointed out in 2018, out of the eight constitutionally mandated referendums held in the Caribbean region from independence to 2018, in only one of them has a government been successful in securing a majority for its proposals for constitutional reform. O'Brien argues that, "There are many factors at play "in determining the outcome of a referendum, "but the one common denominator in the region "is political partisanship, "and a culture of political tribalism "and political adversarialism "that has much to do with the winner takes all nature "of the Westminster model of government "that prevails in the region, "rather than the perceived objections "to the recognition of the authority of the CCJ." O'Brien quotes the political commentator Sir Ronald Sanders in arguing that the principle objective of opposition politicians in both Antigua and Barbuda, and Grenada in opposing the CCJ was to give the governing party a bloody nose. He also argued that, quote, "The inclusion of referendum requirements "in the Caribbean independence constitution "reflected the British Government's determination "to preserve the Westminster model of government "and the protection of fundamental rights "in the post-independence era, "having been earlier alarmed "by Kwame Nkrumah actions in Ghana "in enacting a new constitution "with a presidential system of government "within three years of independence. "The super-majority required "in the case of the three countries "was a further reflection "of just how much the British Government "distrusted their independence leaders, "whom they regarded as firebrands." O'Brien regarded this situation as a bad thing. He argues that the case for replacing the Privy Council with the CCJ is a very compelling one, and if a majority of citizens cannot be persuaded to vote for such reform, it is difficult to imagine which, if any other constitutional reforms they would support. But on the other hand, opposition to the CCJ isn't necessarily just stubborn political partisanship. One common argument is about political independence. As we've just heard, Commonwealth Caribbean countries and Commonwealth Caribbean politics tend to be bitterly adversarial, something which is exacerbated by the winner take all nature of the Westminster parliamentary system, that partisanship often finds its way in the conduct of litigation. Many cases brought before the courts have a political angle. Frequently, the power struggles between opposing parties are played out in the courtroom and at the ballot box at the same time, and to a greater extent than in the UK. Many Commonwealth Caribbean judges are former politicians, politicians and judges generally come from the same small local elites, it isn't uncommon for former government ministers and attorney generals to be appointed to senior judicial roles. By contrast, the argument goes, the Privy Council is completely insulated from Caribbean politics and is not going to be swayed by these matters. As Desiree Artesi, a specialist in Privy Council appeals, writes in "Counsel" magazine, that the Judicial Committee's freedom from political influence and bias is seen as a unique selling point by foreign investors in those territories that retain the Judicial Committee as their highest court. She also advances a second suggestion as to why some Caribbean jurisdictions have chosen to retain the Privy Council. She highlights the breadth of cases dealt with by the judges who make up the Judicial Committee, embracing a staggering amount of complex law and encompassing a wide ranging subject of areas. She suggests that the sheer volume of cases dealt with by the Judicial Committee of the Privy Council judge, living in a society of 68 million-odd people, is what gives them the edge. She suggests that a mutual exchange of judicial sit-ins between the Judicial Committee of the Privy Council and the CCJ would be beneficial. But here's the thing,

the proof of the pudding is in the eating:

let's compare and contrast the human rights jurisprudence of the CCJ and the Privy Council, and see what conclusions we can reach. We're going to look at two key issues in the Commonwealth Caribbean constitutional jurisprudence, and compare and contrast the approaches of the CCJ and the Privy Council.

The first issue:

the savings clauses. One of the biggest flaws in human rights protections in the Commonwealth Caribbean is the existence of saving clauses. I touched upon this in a recent lecture in this series. Most Commonwealth Caribbean constitutions have saving clauses for existing laws. These clauses, to a greater or lesser extent, immunize laws from constitutional challenge where those laws pre-date the constitution itself. However, the wording of the clause differs substantially from constitution to constitution. The Privy Council, of course, is not responsible for the existence of these clauses, but it is responsible for how they are interpreted. Many of the cases concerning savings clauses have been about the imposition of the mandatory death penalty for murder. The Commonwealth Caribbean inherited from English law the mandatory imposition of the death penalty in all cases of murder, without regard to mitigating circumstances. The Privy Council accepted in Reyes against the Queen 2002 that the mandatory death penalty constitutes inhuman and degrading punishment, since it has no regard to the offender's individual circumstances. But a major battleground has been whether the mandatory death penalty is protected by the saving clauses. In a case called Crown against Hughes in 2002, and another case, Fox against the Queen, also in 2002, the Privy Council construed the saving clauses of, respectively, the Saint Lucia Constitution and the Saint Kitts and Nevis Constitution. In both cases, the saving clause was narrowly worded, it provided that nothing contained in or done under the authority of any law could be held to be inconsistent with the constitutional prohibition of inhuman or degrading treatment or punishment to the extent that the law in question authorized any description of punishment that was lawful immediately before independence. In both cases, the Privy Council held that the saving clause did not prevent them from holding that the relevant law was inconsistent with the constitution insofar as it required, rather than merely authorized the judge to impose the death penalty. So far so good. But other Commonwealth Caribbean saving clauses were more broadly worded. In Roodal against the state of Trinidad and Tobago, the Privy Council construed the savings clause of Trinidad and Tobago's Constitution, which simply provided that an existing law could not be held to be inconsistent with or in contravention of fundamental rights, it held that, although the saving clause protected the existing law, the existing law could be read with modifications so as to read the mandatory death penalty as a discretionary death penalty. In order to achieve this result, they relied on section 5(1) of the Constitution Act 1976, which was not part of the constitution, but rather part of an instrument that brought it into force. That provision stated that, "The existing laws shall be construed "with such modifications, adaptions, "and qualifications, and exceptions "as may be necessary to bring them into conformity "with this act." The Privy Council used this power in Roodal to construe the mandatory death penalty as a discretionary death penalty. But in another case, Boyce against the Queen, the Privy Council, less than a year later, overruled their own decision in Roodal. Having convened a nine-member board for the first time in 150 years, the Privy Council held by a majority that the saving clause in Barbados, which was in the same terms as that in Trinidad and Tobago, protected the mandatory death penalty from constitutional challenge. They held that the modification power, there contained in article 4(1), of the Barbados Independence Order 1966 could not be used to modify the mandatory death penalty. They applied the same reasoning to the Trinidad and Tobago savings clause in the later case of Matthew against the state of Trinidad and Tobago in 2004. In relation to the Jamaican Constitution, they held in a case called Watson against the Queen in 2004 that the Jamaican mandatory death penalty was not protected by the savings clause because it was not an existing law, but they upheld the correctness of the construction of the saving clauses in Boyce and Matthew. These saving clauses were of wider application than merely protecting the mandatory death penalty. Some commentators have been scathing about the Privy Council's approach. In a study of LGBT equality in the Commonwealth Caribbean, Raznovich states that the Privy Council's approach in Boyce, Matthew, and Watson has become a significant barrier to equality because it held that the general saving clauses provide an absolute immunity to all colonial laws from any constitutional challenge. As he pointed out, this means that discriminatory laws criminalizing same-sex relationships are equally immunized from challenge. By contrast, Raznovich notes with approval that the CCJ has now departed from Boyce, the Boyce line of authority. In Nervais against Regina in 2018, the CCJ overruled Boyce in respect of Barbados. The court memorably said, quote, "The proposition that judges in an independent Barbados "should be forever prevented from determining "whether the laws inherited from the colonial government "conflicted with the fundamental rights provision "of the constitution "must be inconsistent with the concept of human equality "which drove the march to independent status," before going on to say, quote, "The general saving clause is an unacceptable diminution "of the freedom of the newly independent peoples "who fought for that freedom "with unshakable faith in fundamental human rights. "The idea that, "even where a provision is inconsistent "with a fundamental right, "a court is prevented "from declaring the truth of that inconsistency "just because the laws "form part of the inherited laws "from the colonial regime, "must be condemned," and also pointing out that, quote, "The inescapable irony is that in most cases, "the rules, "which it has been said we are bound to apply "here in the Caribbean, "have long since changed in England, "while, on the view that there has until now prevailed, "we must remain trapped in the colonial past." All powerful stuff. The CCJ decided that a restrictive interpretation of the general savings clause should be adopted, and that the courts should, as mandated by the independence order, apply the existing laws with such modifications as may be necessary to bring them in conformity with the constitution. This decision is plainly to be welcomed, it speaks well of the CCJ's commitment to decolonialization and human rights, and it also illustrates the CCJ's independence from its sponsoring governments. Raznovich points out, forgive me, his point about the relevance of this issue to LGBT rights was well made. In a case called McEwan versus the Attorney-General of Guyana in 2018, the CCJ applied Nervais to strike down a colonial era law that criminalized cross-dressing. This archaic and discriminatory law had been used to prosecute four transgender women for wearing women's clothes in public. Upon being convicted in the magistrates' court, the magistrate informed them that they were confused about their sexuality and advised them to go to church. They appealed to the high court, and to the court of appeal, and lost. Those courts relied on conventional wisdom to hold that the saving clause of the Guyana Constitution completely immunized pre-independent laws from constitutional challenge. Undeterred, they fought their case to the CCJ, where they won. This case illustrates the value of Nervais' judgment in expanding the protection of human rights. Very recently, the Privy Council pushed back: in the recent case of Chandler against Trinidad and Tobago 2022, a nine-member Judicial Committee decided not to follow Nervais and McEwan. It reaffirmed that the mandatory death penalty in Trinidad and Tobago is saved by the savings clause, reaffirming the correctness of its decision in Matthew. As the board acknowledged in the closing paragraphs of its decision, the mandatory death penalty is recognized internationally as cruel and unusual punishment. In the board's words, "It will often be disproportionate and unjust," but on the basis of the board's construction of the savings clause, it was constitutional. The Judicial Committee also pointed out correctly that the policy questions posed by the savings clause are not limited to the mandatory death penalty, but also apply to other preserved laws which are inconsistent with the higher standards imposed by the constitution, and as we saw earlier in the case of McEwan, is an illustration of the relevance of this debate in a different context. Interestingly, the Judicial Committee also said it did not question the outcome of the decisions in Nervais and McEwan, each of which, in its view, could be distinguished by Matthew, but the practical effect of its decision is not just that the mandatory death penalty remains in force in Trinidad and Tobago, but that the jurisprudence of the Privy Council and the CCJ have now definitely diverged as regards the proper approach to the savings clause. There's a real difference in the rhetorical style of Nervais and that of Chandler. The former is an eloquent paean to the constitutional principle, the latter is cautious, conservative, and deferential to precedent. It's not to suggest that Chandler is devoid of principle, on the contrary, the board places great emphasis on the principle of legal certainty, even citing the legal philosopher Lon Fuller, and on the role of the elected legislature. But the two cases definitely reflect different philosophies about the place of the judiciary in a democratic society. So what can we draw from this? In short, the Privy Council and the CCJ have diverged from each other on a fundamental issue of constitutional interpretation, which cuts to the very heart of constitutional jurisprudence. More than that, they've diverged in their general approach to constitutional law. In jurisdictions with a general savings clause, we can now expect to see a marked difference in the approach between those who have adopted the CCJ as the highest court, and those who have not. In the former, we can hope to see repressive colonial laws toppling like a house of cards, in the latter, we can expect to see the revision of colonial laws left primarily to the elected legislature rather than to the courts. And the problem with that is, where you have populist governments who harp on about populist laws, it's going to be very difficult to have those laws changed. I want to come to the second issue, which is the preambles. This is the second battleground in the Commonwealth Caribbean constitutional jurisprudence. As I highlighted in my previous lecture, most Commonwealth constitutions in the Caribbean and elsewhere contain a clause at the start of their bill of rights that sets out broad statements of principle, with wording such as life, liberty, security of the person, and the protection of the law. They then go on to set out specific rights by the constitution in subsequent clauses. A controversial issue for decades has been whether these initial provisions are merely preambles, or whether they create separate enforceable rights. The Privy Council has tended to take a narrowly textual approach to this question. The first Privy Council case on this question was the Maltese case of Olivier against Buttigieg. In that case, the Privy Council held that the relevant provision of the Constitution of Malta was merely a preamble, and did not create any separate enforceable rights. In reaching this conclusion, Lord Morris placed great emphasis on the fact that the provisions began with the word whereas. He said that the provision was an introduction to, and in a sense an explanatory note in relation to the sections which are to follow. By contrast, in the Mauritanian case of Societe United Docks against the Government of Mauritius, the Privy Council reached the opposite conclusion in respect of an equivalent clause in the Mauritian Constitution, holding that it did create enforceable rights. The reason for the distinction was that the Mauritian provision was worded differently. Whereas the Maltese provision began with the word whereas, the Mauritian provision began with, "It is hereby recognized and declared that." In addition to the distinction between the whereas wording and the hereby recognized and declared wording, the other factor on which the Privy Council has placed weight is whether the constitution itself provides for the section to be enforced. This factor was highlighted in the Bermudan case of Grape Bay Ltd. against the Attorney General of Bermuda. The narrowly textual approach that began with Olivier has been followed by the Privy Council in numerous cases to hold that equivalent clauses of the Caribbean constitutions do not create enforceable rights, for example in Antigua and Barbuda, prior to independence, in the case of Attorney General against "The Antigua Times," that's a 1976 case, and in Dominica in the case of Blomquist against the Attorney General of Dominica, and that's a 1987 case, and in the Bahamian case of Newbold against the Commissioner of Police, that's a 2014 case. By contrast, the CCJ, in recent years, has taken a broader, less black-letter view of the issue. In the landmark case of Maya Leaders Alliance against the Attorney General in 2015, the court held that the equivalent provision of the Belize Constitution, section three, was not a mere preamble or introduction, but conferred substantive rights. In that case, which concerned traditional land rights of the indigenous Maya people in Belize, it held that the Maya could rely on the protection from arbitrary deprivation of property conferred by section three. That right was broader than the protection from compulsory acquisition of property conferred by section 17. Thus, there could be an arbitrary deprivation of property within the meaning of constitution, even where there had not been a compulsory acquisition of property by the state. The CCJ analyzed the same issue more closely in the mandatory death penalty case of Nervais, which we looked at earlier. In that case, the CCJ held that section 11 of the Constitution of Barbados conferred separately enforceable rights notwithstanding it began with the word whereas. They comprehensively demolished the reasoning adopted by the Privy Council in the case of Olivier, and that line of authority. They firstly noted that the Privy Council's reasoning attributed an unusual reading of the word preamble. The Constitution of Barbados did have a preamble, but section 11 was not part of the preamble, it was in the substantive portion of the constitution. They held that the language of section 11 was not aspirational, nor was it a preliminary statement of reasons which made the constitution, or sections of it desirable. They gave short shrift to the reasoning in Olivier and Societe United Docks, holding, and I quote, "When one reviews the two sections "in the Maltese and the Mauritius constitutions, "did they really intend to impute such different meanings "as has been attributed to them? "It would seem to us that in the Maltese Constitution, "the word whereas could easily have been construed "to mean it is hereby recognized and declared that, "or even simply, "in light of the fact that. "These are meanings normally attributed "to the word whereas," end of quote, They held that section 11 was not a preamble, and that the right to the protection of the law conferred by section 11 was a separately enforceable right. In short, whether the courts could enforce the fundamental rights to life, Liberty, and the protection of the law did not depend on the arbitrary fact of whether the draftsman had chosen to use the word whereas. Once again, therefore, the CCJ, in its recent jurisprudence, has taken a broader, a more progressive approach to the constitutional rights than the Privy Council. The distinction drawn by the Privy Council between the precise wording of the Maltese or the Mauritian constitutions was arguably technical to the point of absurdity, and has had an out-sized impact on the Commonwealth constitutional jurisprudence. For Barbados, Nervais has now done away with this black-letter textual approach, and replaced it with a broad and purposive approach, which, in my view, is far more appropriate to the issue of fundamental rights. So let me come to my conclusion. I would like to close with three concluding thoughts about the CCJ debate. Firstly, the concerns about the CCJ's independence do not appear to be well founded. In this lecture, we've looked at three cases, Nervais, Maya Leaders Alliance, and McEwan, where the CCJ gave bold and progressive judgements, expanding the frontiers of human rights protection and departing from the narrow textural approach of the Privy Council. All three of those cases were decided adversely to national governments. These cases give cause for real confidence in the independence, integrity, and quality of the CCJ as an apex court. Certainly, the jurisprudence provides no evidence that the CCJ is an inferior court to the Privy Council as a guardian for human rights. If anything, the opposite seems true. Secondly, however, there's often a certain hypocrisy when we hear anticolonial rhetoric from Caribbean politicians. In many cases we've looked at in this lecture and this lecture series, Caribbean governments have fought in the courts to keep oppressive colonial era laws on their books. As we've seen, governments from all over the Caribbean defended the mandatory death penalty cases in case after case, from Reyes to Chandler and in McEwan, the Guyanese Government opposed the appellant's appeal all the way to the CCJ. These are just a few examples among many. We've seen all manner of human rights abuses happening in the Caribbean, from appalling prison conditions, to corporal punishment, to police violence, to the destruction of the natural environment by private developers, we see persistent inequality and poverty, which governments appear to be doing little to stem. With this in mind, can it really be surprising that when a government proposes constitutional change and asks the people to vote for it, the people are skeptical? Caribbean people have little reason for faith, at times, in some of their political leaders. And finally, it's important to note that the ongoing impact of colonialism on the Commonwealth Caribbean goes much deeper than the question of the apex court. Corporations and investors from outside the region continue to treat the Caribbean as a playground. All too often, the English common law system we inherited serves the interests of the corporate class rather than ordinary working people. In this regard, the recognition of indigenous communal land ownership in the Maya Leaders Alliance case ought to be a salutary reminder that there is a better way. Our countries don't need to be playgrounds for the wealthy, our environment doesn't have to be despoiled for profit, and our land doesn't have to be a commodity to be bought and sold. A supreme court, however enlightened, can't bring all the changes that are needed. Ending colonialism requires a change in our political culture. The issues also stem much deep and wider than just matters of law and justice. There appears to be a wind of change blowing through the Commonwealth Caribbean, and it's beginning to pick up rapidly, for example, the vocal and public condemnation of the legacies of colonial era ideologies, as did the Bahamas National Reparations Committee, the Advocacy Network in Jamaica, and the indigenous Maya people of Belize in a joint open letter published at the end of March, 2022, in response to the Duke and Duchess of Cambridge's recent tour. The Caribbean coalition united, pushed for slavery reparations from Britain, to remove the Queen as head of state in each country, with its letter reading, quote, "We stand united "in rejecting the so-called charm offense tour "of the Caribbean "undertaken by William and Catherine, "the Duke and Duchess of Cambridge, "which is in sharp opposition "to the needs and aspirations "of indigenous peoples and people of African descent "in the Caribbean. "We stand united in condemning Britain's savagery "in enslaving our ancestors, "the coarse indecency of colonial exploitation, "the brutality of its enforcers, "and the enduring legacies "of impoverishment and colonial ideologies "that have damaged and continue to damage "our people, our society, and our economy. "Going forward, we stand stronger, "united in our call for reparatory justice "and in supporting the roadmap for redress "laid out by the CARICOM Reparations Commission. "We will stand strong, "united in our celebration "of the resilience of Caribbean people, "who have accomplished much since our independence, "against the odds, "and we commit to continuing in this tradition "in tackling contemporary challenges, "rooting out all vestiges of our post-colonial past, "and empowering our people to achieve more," end quote. The joint open letter came as the prime minister of Jamaica stated that his country intends to move on and become a republic. We saw Barbados become a republic just recently, while a government committee in the Bahamas called the British monarchy to issue a full and formal apology for their crimes against humanity. The Belize Government also said that the people's constitutional commission would be consulted on becoming a republic, with Henry Charles Usher, Minister for Constitutional and Political Reform, telling MPs that, "The decolonialization process "is enveloping the Caribbean region. "Perhaps it's time for Belize to take the next step "in truly owning our independence. "But it is a matter "that the people of Belize must decide on." As Professor Philip Murphy, of the University of London's Institute of Commonwealth Studies said, "There are profound sensitivities "around the legacies of colonialism and slavery, "but the Foreign Office doesn't quite get it." And Professor Rosalea Hamilton, Coordinator of the Advocates Network in Jamaica, said on the topic of Jamaica's history of resistance to oppression and colonial domination, that, "The colonial legacies "that are perpetuated in policies, laws, "and institutional arrangements "that encourage conformity to norms and practices "are ill-suited for the modern world. "It is time to dismantle the last vestiges "of our colonial institution "and the ideological underpinning "of racism, discrimination, and inequality "that persist in the world today. "We must do so "by severing ties with the Queen as our head of state "as well as the Privy Council, "also root out all forms of colonial trappings "that have held us back." The People's National Party Youth Organization in Jamaica, speaking on the need to cut ties with the Privy Council, said in March of this year, "The anachronistic system of appeal "to the Judicial Committee of the Privy Council "has no place in Jamaica's judicial system, "and makes a mockery of our independence. "This is the lowest hanging of all fruit "when it comes to constitutional reform "and the modernization of the Jamaican society. "If the government is sincere "about completing our independence, "and truly wants to send a signal, "in our 60th year, "the prime minister must instruct the necessary officers "to bring the required bills to Parliament "for debate and passage." I will now take some questions. (audience applauds) - I'll just start with a couple of questions from the online audience, and then I'll open it up in here, I can see there a few people who would like to ask some questions. The first question from our online listeners

is about the change in Grenada:

"Do you think they voted against change in Grenada "because the choice was between appointed judges "for the Caribbean "as opposed to abolishing the Privy Council?" - It's very difficult, I can't speak for Grenadians in why they made that decision. I know that, certainly, when the debate and the referendum was in Antigua, in 2018, I think it was, the whole debate was politicized, so rather than it being a vote for constitutional reform, it became party-political. And when something becomes party-political, particularly if you require a super-majority, it becomes very difficult to pass. And I'm no expert on Grenadian politics, but I suspect that may have played a part in it. - There's another question about CCJ judges' appointments, and someone is asking, "Can you speak a little bit more to that? "It was set up to insulate the CCJ "from political interference, "and has been heralded for doing so." - Yeah, I think that's right. I mean to say, many of the appointments are fantastic appointments. My experience with CCJ, I've done one large case there, I found the judges of the highest integrity, and of a caliber second to none. - [Questioner] Thank you very much. After just going through an election myself where a quarter of the people voted, why a super-majority for us to get what we want? Because to me, there's not a good education system in Jamaica. I know there's 99% in Barbados, I know there's 99% in Saint Mauritius, but even in England, the people are not educated enough to make an informed vote, so we need to look at that super-majority. - The problem about the super-majority, the super-majority's been written into the constitution, and at times, some of these clauses are entrenched, and therefore to change the super-majority you need a super-majority to change the constitution, that's the difficulty. That comes back to, at the time of independence, the drafters, and whatever influence was placed on the drafters to put those clauses in. One understands the rationale behind having super-majority clauses, because you want a constitution that means something, and you don't want constitutions just to change with each political cycle, with a new government going in, the constitution constantly being changed, so I get the idea about having super-majorities, but the problem is, if a constitution is very difficult to change, it makes it very difficult for it to evolve with time, and that's a problem that we've seen with some of these constitutions, they just haven't kept up with the times. And where do you see that most? You see that with hard fought rights, the rights that we take for granted, it's very difficult to change those rights because you have many jurisdictions as if they're living in the past. - [Questioner] It was only 51% to 49% that caused Brexit. - That's a debate for another day. - Someone online has made a very similar point, I think it is an interesting question, isn't it. I'm afraid we've run out of time. Thank you so much everyone for attending, and to our audience online for joining us today. Please do come back next year for Professor Thomas' next series. Did you want to speak to that a bit?

- Yeah, can I just say this:

the third in the series, year three, it's going to be a really interesting approach, it's called the Re-imagining Series, re-imagining the law starting from scratch, breaking the systems down and looking at, do we need juries, do we need criminal law, can we imagine a system like that, somebody said do we need police, so it's going to be a controversial and interesting lecture series next year. I think the first lecture is either the end of September, or the beginning of November, and I look forward to seeing you all there. - Just check out our website, and please join me in thanking Professor Thomas again. (audience applauds)