One Love, Many Laws: Reasons for Jamaica to Rethink Adopting the Caribbean Court of Justice
Sixty years ago, Jamaica declared its independence from Britain, making it the first nation in the English-speaking Caribbean to create a legal separation from England.[1] In the years since, Jamaica’s relationship to Britain has raised questions as to the depth of its independence. Although the island declared independence, it still is not a republic given that it still recognizes the British Monarch as its head of state—making it a constitutional monarchy.[2]
Jamaica’s relationship to the Crown both before and after Independence has impacted it in many ways. For one, Jamaica’s election laws to date are still reflective of the time it spent under British rule. Secondly, Jamaica continues to utilize a common law judicial system in which the Judicial Committee of the Privy Council (“JCPC” or the “Privy Council”), which sits in England, is the court of highest appeal.[3] The Privy Council may hear both civil and criminal cases from Jamaica. Although Jamaica’s use of the Privy Council may not necessarily be harmful where the court’s decision does not impact questions of Jamaica’s sovereignty and autonomy, where those issues do arise—and are brought to the high court—these binding decisions can raise questions for Jamaica’s right to self-determination.
One area in which the JCPC raises a concern is Jamaica’s electoral laws and electoral procedures. Electoral laws in Jamaica are still very much a reflection of British Rule. Electoral laws such as Law 21 from 1884 and the main framework of the Representation of the People Act of 1944 continue to shape the islands’ electoral landscape. For example, the structure of parliamentary elections is a remnant from Britain’s rule on the island.[4] As part of the Commonwealth, such a government structure is not unusual.[5] It is concerning, however, that the court of Jamaica’s former ruler has the authority to determine electoral disputes should they arise.
This concern is not unique. Jamaicans were among the first to urge that Caribbean nations form its own court of highest appeal—the Caribbean Court of Justice (CCJ).[6] The CCJ currently serves as the primary court to resolve disputes among the member states of the Caribbean Community (“CARICOM”). The CCJ currently applies international laws in resolving disputes.[7] Yet, currently, only three islands have elected to have the CCJ as their court of highest appeal.[8] In the time since advocating for the adoption of the CCJ as the Court of Highest Appeal, Jamaica has not yet ratified that decision, though the death of Queen Elizabeth has renewed these sentiments among some members of the island.[9]
In light of concerns similar to the electoral disputes, some have advocated for the use of the CCJ as the highest court of appeal.[10] Despite the fact that JCPC may not be optimal, however, using the CCJ as the highest court of appeals raises its own concerns. First, some members of CARICOM—and therefore of CCJ—followed different colonial histories. These histories may impact the way in which cases are decided and subsequently have an impact on the aforementioned concerns with autonomy and sovereignty. Haiti, for example, was the first free country in the Caribbean in 1804, but prior to that was once under French rule.[11] Suriname, on the other hand, was under Dutch rule for over 300 years.[12] In the same way that Jamaica’s current laws, particularly its election laws, are affected by British rule, so too does this possibility arise for states such as Haiti and Suriname whose prior rulers followed different legal traditions.
However, the majority of CARICOM nations are former British colonies,[13] which would mean that the legal traditions concern, though important, would not be a major one. What does raise a concern with adopting the CCJ is that each of those former colonies has followed its own trajectory to independence. St. Kitts, for example, became an associated state to the monarchy in 1966, and then declared independence in 1983[14]—which is quite different from Jamaica’s decision to become independent in 1962.
Although Jamaica has yet to determine whether it will ratify the CCJ, concerns regarding the jurisprudence the court will follow in resolving disputes should be more than enough for the country to continue to reconsider the decision.[15] Perhaps, Jamaica—and other Caribbean nations—may elect to have the court of highest appeals be a court within its own borders, and perhaps in that way may begin its journey to true independence.
Tasha Brown is a staff member of Fordham International Law Journal Volume XLVI.
[1] See Juana Summers, Jamaica is reevaluating its relationship with the British monarchy, NPR: All Things Considered (Sept. 19, 2022 5:44 PM), https://www.npr.org/2022/09/19/1123926811/jamaica-is-reevaluating-its-relationship-with-the-british-monarchy.
[2] See id.; Derek O’Brien, Jamaica’s Long and Winding Road to Becoming A Republic, ConstitutionNet: News/Voices from the Field (Jun. 30, 2022), https://constitutionnet.org/news/jamaicas-long-and-winding-road-becoming-republic.
[3] See Structure of the Jamaican Court System,https://supremecourt.gov.jm/sites/default/files/pdf_documents/Structure-of-the-Jamaican-Court-System.pdf (last accessed Dec. 11, 2022);Role of the JCPC, Judicial Committee of the Privy Council, https://www.jcpc.uk/about/role-of-the-jcpc.html (last accessed Jan. 8, 2022).
[4] See Electoral Commission of Jamaica, History of the Electoral Commission of Jamaica, at 6, 2014.
[5] See Our History, The Commonwealth, https://thecommonwealth.org/history (last visited Jan. 8, 2022) (discussing that many members of the Commonwealth were once members of the British Empire).
[6] See Ezekiel Rediker, Courts of Appeal and Colonialism in the British Caribbean: A Case for the Caribbean Court of Justice, 35 MICH. J. INT'L L. 213, 242 (2013); We Want Justice: Jamaica and the Caribbean Court of Justice at xiv (Delano Franklyn ed., 2005).
[7] See Caribbean Court of Justice, International Justice Resource Center, https://ijrcenter.org/regional-communities/caribbean-court-of-justice/ (last visited Jan. 8, 2022).
[8] See id.
[9] See A.J. Nicholson, Clinging to the Privy Council is denial of access of justice, The Jamaica Gleaner: Public Affairs (Sept. 18, 2022, 12:09 AM), https://jamaica-gleaner.com/article/commentary/20220918/aj-nicholson-clinging-privy-council-denial-access-justice.
[10] See generally Rediker, supra note 6.
[11] Haiti country profile, BBC News (July 7, 2021), https://www.bbc.com/news/world-latin-america-19548810.
[12] A Guide to the United States’ History of Recognition, Diplomatic, and Consular Relations, by Country, since 1776: Suriname, U.S. Office of the Historian, https://history.state.gov/countries/suriname (last visited Jan. 8, 2022)
[13] See Caribbean Court of Justice (CCJ), CARICOM Caribbean Community, https://caricom.org/institutions/caribbean-court-of-justice-ccj/.
[14] A Guide to the United States’ History of Recognition, Diplomatic, and Consular Relations, by Country, since 1776: St. Kitts and Nevis, U.S. Office of the Historian, https://history.state.gov/countries/saint-kitts-nevis#:~:text=Present%2Dday%20Saint%20Kitts%20and,with%20Great%20Britain%20in%201967 (last visited Jan. 8, 2022).
[15] See generally Rediker,supra note 6.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.