Summary
The decline of appeals to the Privy Council The case of Canada Australia's abolition New court in New Zealand The Caribbean's court challenge Decline of appeals and petitions to the Privy Council< The road to being Arguments of resistance The court in existence Access to justice - the Caribbean Court of Justice vs the Privy Council Independence and security of the Caribbean Court of Justice Some features of the Caribbean Court of Justice
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Extract
Judicial Independence - Final Appellate Court Establishment
The decline of appeals to the Privy Council As has been demonstrated above, the Commonwealth of British nation states thus preserved their right to appeal to the Privy Council. Over time, however, as these states came to believe in the need to assert their own judicial path, such appeals proceeded along an inexorable road of decline. This decline was expressed through the varying routes taken towards judicial independence by these Commonwealth countries. The 1931 Statute of Westminster2 gave enablement to the discontinuance of appeals to the Privy Council. That legislation applied to the 'Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland'33. The removal of the application of the 1865 Colonial Laws Validity Act to the laws 'made after the commencement [the Colonial Laws Validity Act] by the Parliament of a Dominion'4set the stage. Canada was the first to make de-linking movements, commencing in 1933 and ending by 1949. Upon gaining independence, India ceased appeals to the Privy Council in 1947, and this was followed by the gradual withdrawal of Ceylon, now Sri Lanka, and Africa. Malaysia abolished appeals in 1984 and Australia in 1986. In 1989, Singapore only reserved appeals to the Privy Council for death penalty cases, and by 1994 had fully ceased all appeals. The Gambia finally removed this jurisdiction with its 1997 Constitution, which provided for its Supreme Court to replace the Privy Council. This book will examine the pioneering efforts of Canada and will investigate the crossing made by Australia from Downing Street to its own High Court in Canberra. The new millennium has also brought actions in New Zealand and the Caribbean to the fore, and these too will be analysed. Particularly for the Caribbean, this text comes at a time when the focus on best practices, coupled with the indigenous needs of a final court, has operated to produce the ultimate product deemed appropriate for the region's citizenry. There have been strenuous arguments in the respective countries and regions, both for and against the removal of appeals to the Privy Council. At the time of writing, these arguments are particularly focussed in the new establishments of New Zealand and the Caribbean. However, similar sentiments have been consistently put forward over the decades. Former Registrar of the Privy Council, DHO Owen5 writing as Registrar in 1994 examined two contrasting arguments. He quoted the statement in 1937 of former Australian Prime Minister Sir Robert Menzies: 'The appeal to the Privy Council is one of the few remaining formal links between the various parts of the British Commonwealth of Nations ... appeal to the Privy Council means that we preserve some broad uniformity of legal decision on matters of law which are common to the whole Empire, such as the Common Law and the general principles of Equity...' He equally presented the position of the Chief Justice of India in 1965: Since India won freedom, Indian legislatures have been ceaselessly working to bring about social and economicjustice in the country, and in the attempt by the legislatures to make laws with a view to solving the problems of poverty and unemployment they are always trespassing on fundamental rights... Every time we in India are called upon to consider the various constitutional effects of legislative enactments... we ask ourselves is it a reasonable invasion required for the public good. These are issues which would be alien in English court, but they are particular to the written Constitution of India.' The opposing positions continue to inform the actions of interest groups in those countries and regions seeking to consolidate their final court establishment. The political arguments and the constitutional amendments that some countries are required to undertake also form part of the equation, the solution to which depends on political will being in tandem with the desire for judicial determination at an indigenous level. The case of Canada Canada attended the Commonwealth meetings, which lent greater understanding to the first route taken by a Commonwealth 'Dominion' in its final court establishment6. Canada as a Dominion was created in 1867 by the British N...
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