CLA News / “Unconscionable Decisions of the Privy Council for the Caribbean: Deliberately Obtuse or Just ‘Unfamiliar’?” by Dr L J Raznovich

I have argued in various publications during the last few years that the Judicial Committee of the Privy Council (“JCPC”) has been hindering the progress of human rights in the Caribbean.  Three decisions of the JCPC during 2022: AG of Bermuda v Ferguson [2022] UKPC 5) (“Ferguson”), Day et al v The Governor of the Cayman Islands et al [2022] UKPC 6 (“Day”), and Chandler v The State No 2 (Trinidad and Tobago) [2022] UKPC 19 (“Chandler”) confirm and reinforce this trend.  This brief article seeks to summarise those publications with a view to initiating a debate on this issue within the CLA.

In Ferguson and Day, the JCPC was asked whether the constitutions of Bermuda and the Cayman Islands, two British Overseas Territories (“BOTs”) whose constitutions are acts of the UK Parliament, require equal marriage.  The JCPC answered in the negative holding that these constitutions fall short of protecting LGBTQI+ people, thus leaving them with no constitutional rights to be treated equally, even though there is no express language in these constitutions that prohibits same sex marriage.  Relying on an immutable personal characteristic (i.e., sexual orientation), the JCPC’s decisions exclude a vulnerable disenfranchised minority from equality, following the steps of the USA Supreme Court in Plessy v Ferguson 163 US 537 (1896), when on grounds of race, the court brought about racial segregation that lasted for more than half a century and the effects of which are still being felt today.

In Chandler, the JCPC went one step further: it facilitated criminalisation of LGBTQI+ people.  Chandler confirmed Matthew v Trinidad and Tobago [2004] UKPC 33 (“Matthew”), a colonial mandatory death penalty case to which the JCPC applied the ratio in Boyce v the Queen [2004] UKPC 32 (“Boyce”).  In Boyce, the JCPC (5 to 4) construed the Barbadian constitution to provide absolute immunity to colonial laws from constitutional challenge regardless of how “inhumane or degrading” they may be.  Lord Millet, in his published memoires (As in Memory Long, Wildy 2015), revealed that the panel that heard this appeal was set up to secure this outcome. This construction was also found by the Inter-American Court of Human Rights (“IACtHR”) to be in breach of international law (Boyce v Barbados, ACHR Series C no 169 of 20 Nov 2007).  Irrespective of Lord Millet’s revelations and the JCPC’s acceptance in Chandler that there now exists “difference of opinion… with tenable arguments” as regards whether the decisions in Boyce and, thus Matthew, were right or not, the JCPC felt compelled to stand by the decision in Matthew, i.e., stare decisis.  Thus, the JCPC upheld the enforceability of all colonial laws, which includes criminalisation of LGBTQI+ individuals.

These cases involve constitutional construction of codified written constitutions, i.e. where the constitution, rather than the parliament, is supreme.  In that context, the JCPC’s attempts to justify its decisions, by deference to majoritarian democratic ruling, remain highly unpersuasive by effect of its failure to follow (or to give reasoned explanation for why it departed from) its own long-established principles of constitutional interpretation, such as the “living tree”, generous and purposive interpretation of bills of rights, strict and narrow interpretation of derogations from human rights, the presumption that constitutional provisions are intended to conform with international obligations where there is ambiguity, carefully focusing on the language rather than the intention of the drafter, etc.  Lord Bingham explained in Bowe v R [2006] UKPC 10 that constitutional adjudication of primary legislation under a written constitution is unfamiliar and even resisted by some in the JCPC, perhaps due to their conflation of two very different systems of governance.  However, the JCPC, by virtue of these decisions, is not just failing in its legal role of a constitutional court to expound fundamental rights, but rather shows a willingness to prevent progress on LGBTQI+ people’s rights in the Caribbean by making choices overtly inimical to their rights.

Historically, the JCPC has never delivered a decision in the Caribbean to further LGBTQI+ rights; conversely, worse still, it has even reversed Caribbean driven judicial progress regarding LGBTQI+ rights.  For instance, discrimination on grounds of sexual orientation was enabled by the JCPC in Surratt v Trinidad and Tobago [2007] UKPC 55 by reversing the local Court of Appeal’s conclusion that excluding people from the protection of the law on grounds of their sexual orientation was unconstitutional.  In Ferguson, the JCPC not only brought about discrimination, where it had ceased to exist, but also allocated the legal costs to the LGBTQI+ petitioners that had won in every court in Bermuda but were dragged on appeal to the JCPC by the Bermudan government.  The JCPC did not explain in Ferguson why it departed from its own precedent on costs in a matter of constitutional rights, see Ahnee v DPP (Mauritius) [1999] UKPC 11 in which a unanimous JCPC concluded “[G]iven that the real substance of the appeal concerned important matters of constitutional law, and that bona fide resort to rights under the Constitution ought not to be discouraged, their Lordships make no order as to costs”.  This is not only discouraging LGBTQI+ people in the Caribbean from bringing constitutional cases but also evidences, at the very least, unconscious bias among its members.

No apex court in the Americas has so consistently denied LGBTQI+ people the ability to assert and advance their legal rights under their constitutions in modern times as the JCPC has done to date.  LGBTQI+ people in BOTs do have a final recourse by effect of the UK having extended the European Convention on Human Rights (“ECHR”) to its BOTs.  The UK, hence, is answerable to the residents of the BOTs and the European Court of Human Rights (“ECtHR”) for any violation of the ECHR by the government of the BOTs.  In this regard, the petitioners in Ferguson filed an application to the ECtHR following the JCPC’s decision, which was preliminarily admitted and communicated to the UK, see Ferguson et al v UK, Application no.35043/22.  The petitioners acknowledge that there is not yet a positive obligation to introduce equal marriage under Article 12 of the ECHR, but argue that this provision alone, or in conjunction with Article 14, protects against revocation of equal marriage once it has been introduced into domestic law.  A different argument, but with similar effect, may take the decision in Day also to the ECtHR.  However, none of the seven independent Caribbean nations, for which the JCPC remains the final appellate court, has accepted the contentious jurisdiction of the IACtHR.  This presents a serious problem in that, whereas decisions of the JCPC endorsing discrimination of LGBTQI+ people in BOTs can be challenged before the ECtHR, more serious decisions, such as those endorsing criminalisation, cannot be challenged before the IACtHR.  In fact, there is a darker side in Chandler: it provides governments with absolute impunity to effect, without judicial control domestically or internationally, the machinery of social control and oppression as left behind by the British Empire in the form of colonial legislation.  If the impossibility of challenging breaches of international law before the IACtHR provides little incentive to repeal those laws, the prospect of acting with impunity as a consequence of the judiciary’s failure to discharge its constitutional duties may have sealed the fate of LGBTQI+ people for the foreseeable future.

The pernicious effect of the judiciary assisting oppressive governments is not something new.  During the apartheid regime in South Africa, the ‘Truth and Reconciliation Commission’ found that many lawyers and judges assisted in the application of laws that were designed to demean and de-humanise people on grounds of race.  During colonial times, as acknowledged by Prime Minister May, anti-LGBTQI+ laws were exported by the UK to the Caribbean for which Prime Minister May apologised in 2018 when she expressed deep regret “as the UK’s prime minister, … [for] the fact that such laws were introduced [by my own country]. They were wrong then, and they are wrong now, and the legacy of discrimination, violence and even death that persists today.” (“Theresa May says she deeply regrets Britain’s legacy of anti-gay laws” (The Guardian 17 April 2018).  Against this background, it is shocking that UK judges ignore principles of human dignity and equality in favour of attributing more significance to oppressive majorities, thereby showing unfamiliarity or contempt, in the words of Lord Bingham, for the role of codified written constitutions in those countries.  This is a populist attitude that is anathema to the rule of law.  Absent a change in approach, I would argue that the UK must accept that its judiciary is not fit for constitutional adjudication in the Caribbean region and thus restrict its role so that it stops hindering human rights progress.  The JCPC is, after all, a creature of the British Parliament (The Judicial Committee Act 1833), not a divine creation and is the last remanent of British colonial power in the Americas.  In fact, it is in essence a foreign extra-continental power in that its competence and jurisdiction, its composition and the discipline of its members are all in the hands of the UK, with no power over those matters resting in the hands of the independent country.  It is questionable, therefore, whether the seven countries in the Americas that, upon independence, chose to keep the JCPC as the apex of one of the three branches of government (after the executive and legislative branches) are meeting, under international law, the requirement of being fully independent, which pursuant the OAS Charter is an essential requirement to join it as a member the OAS.

Conclusion

I would argue that there is no reason why British judges should continue to be called upon and held responsible for deciding, or advising His Britannic Majesty, to enforce abhorrent British colonial laws preventing the growth of human rights in the Caribbean region.  Especially where the local Caribbean governments are unable to persuade their own Caribbean judiciary, including the Caribbean Court of Justice, to refrain from expounding constitutional human rights for, among others, the LGBTQI+ members of their populations.  To reinforce this point and the dangers of the JCPC’s unconscionable decisions for the Caribbean human rights progress, it is perhaps helpful to ponder what the JCPC would have decided in the cases challenging criminalisation of transgender people in Guyana (see McEwan v Guyana [2018] CCJ 30 (AJ)) or criminalisation of sexual intercourse between consenting adults of the same sex in Barbados?  This is not just rhetorical in that my point is valid and requires answering.  Many rejoiced at Barbados’ court striking down criminalisation on grounds of unconstitutionality last year, but the fact is that the High Court was able to do so only because the JCPC is no longer the apex court of Barbados and Boyce (and now Chandler) did not apply to Barbados on this matter after a constitutional reform triggered by the decision of the Caribbean Court of Justice in Nervais v Regina [2018] CCJ 19 (AJ).  Similarly in Guyana, it was the Caribbean Court of Justice that delivered a judgment striking down colonial law that criminalised transgender people leaving behind the case law precedent of the JCPC in Boyce and Matthew.

In answering my question, applying the JCPC’s ruling in Chandler, prima facie, it would lead one to the inevitable conclusion that regardless of how “inhumane or degrading” those laws are they are nonetheless constitutional and hence enforceable in the eyes of the JCPC.

Dr L J Raznovich

June 2023