Judicial Committee of the Privy Council: The Persistence of a British Colonial Institution

Following the British decolonization process, the Judicial Committee of the Privy Council (JCPC) continued as the final appellate court for many new states. Originally designed as a colonial court, the JCPC, therefore, continues to influence independent states. This testifies to the persistence of British colonial influence in the jurisprudence of former colonies. This research on the JCPC provides evidence colonial influences persist beyond the ceremonial and examines the Gambia and New Zealand as cases illustrating different paths to shedding this colonial institutional.


The Judicial Committee of the Privy Council (JCPC)
The JCPC is the apex of the colonial judicial hierarchy. It was an important part of the expansion and entrenchment of British colonial rule, lending legitimacy to the policies of the colonizers, or what Dahl (1957) describes as the lawmaking majority. It is itself, therefore, a national policy maker. Shapiro (1964) refers to this notion as political jurisprudence.
It is important to understand the continued significance of the JCPC as part of the Privy Council, which is a large advisory body that advises the British monarch. Drawing its members from the Privy Council, the JCPC performs a substantive legal function and derives its jurisdiction from a custom based on the medieval Curia Regis (the King's Court) or councilors to the king. The JCPC's appellate jurisdiction rests on the theory that the monarch is the ultimate source and distributor of justice. By 1660, however, this power only extended to overseas territories under British rule (Burns, 1984), but included civil and criminal appeals.
The modern JCPC emerged with the Judicial Committee Act of 1833. The legislation formalized its important structural features and practices (Howell, 1979). The Judicial Committee Act of 1844 expanded the access of British subjects from all overseas territories (The National Archives, n.d.) by granting appeals without leave from a colony's court of appeal. Under the Appellate Jurisdiction Act of 1876 the Law Lords became the permanent judges of the court (The National Archives, n.d.). Currently, the thirteen Law Lords in London sit in panels of five or seven. The United Kingdom staffs and funds the JCPC entirely. Today, there is little doubt about the judicial nature of the JCPC (Burns, 1984).
Herbert Bentwich (1856Bentwich ( -1932, a British barrister and law commentator put it this way: " [T]he King, the Navy and the Judicial Committee are three solid and apparent bonds of the Empire; for the rest, the union depends on sentiment" (Pramdas, 1996, p. 15). Its mot to Honi Soit Mal Y Pense) or "shame on him who thinks ill of it" (Privy Council, n.d.) encapsulates the reputation and the lofty position of the court.
The legal contributions of the JCPC are broad and important with fundamental principles adjudicated.
Examples of this diversity include constitutional challenges to the death penalty, libel cases involving politicians, eminent domain, habeas corpus and issues involving provincial versus federal power. Furthermore, the JCPC (2019) touts appeals from jurisdictions with diverse legal histories and systems.
Between 1858 and 1957, the JCPC handed down approximately 3,750 decisions for India alone.
With the start of decolonization in 1931, the JCPC continued to play a role in states which retain the JCPC as the final appellate court. With a peak of 119 cases in 1931, the JCPC adjudicated an average of 52 appeals per year from 1932 to 2014. The number of cases, the diversity and its rich history, contribute to the positive reputation, and the continuing role and influence of the JCPC in the common law legal system in the British Commonwealth. While colonies had no choice in the establishment of the JCPC as their final appellate court, newly independent states did have this as an option, and could sever ties at independence. www.scholink.org/ojs/index.php/eprd Economics, Politics and Regional Development Vol. 1, No. 1, 2020 45 Published by SCHOLINK INC. Decolonization and the Persistence of the JCPC In 1858, Oxford University professor Goldwin Smith called for colonial emancipation and a severing of all constitutional ties between the U.K. and her colonies (Howell, 1979), but the legal and political communities in the U.K. and the colonies derided Smith's assertion. This early call, however, foreshadowed the process of decolonization that unfolded gradually after 1900. Although five colonies gained dominion status within the Empire soon after 1900, it was not until 1931 that these five dominions-Australia, Canada, Ireland, New Zealand, and South Africa-established themselves as sovereign states in the international community. It is noteworthy that only Ireland, having fought for independence (Dorney, 2012), opted to replace the JCPC in 1931. A preliminary review provides more insight into the relationship between a sample of 50 states from the British Common wealth (Note 4) and the JCPC. A comparative analysis reveals that states fall into three distinct groups (see Table 1). Group 1 is comprised of the 20 former colonies (40 percent) that abolished all appeals to the JCPC upon independence. In Group 2 are the 17 states (34 percent) that retained the right of appeal for a period after independence before abolishing access to the JCPC.
Group 3 consists of the 12 former colonies (24 percent) which as of January 1, 2016 still retain the JCPC as the final appellate court. These differences point to competing approaches in governance and policymaking by sovereign states, and how states view this extraterritorial court as a partner in policymaking and their approach to state sovereignty.  As states emerged from colonial rule, there was a decrease in the number of states served by the JCPC and a decrease in the number of cases adjudicated (see Figure 1). The number of cases includes the states, colonies, and territories that continue to retain the JCPC as of January

New Zealand
Although both The Gambia and New Zealand eventually abolished appeals to the JCPC, the political environment at the time was much more nuanced in New Zealand than in The Gambia where this change followed years of authoritarian rule. Nevertheless, replacing the JCPC in New Zealand was no less driven by the will of the governing coalition in a changed political environment. The Westminster Act (1931) gives all Dominions the option of replacing the JCPC, but as Wilson (2010) points out, this act was not even adopted by the New Zealand parliament until 1947 (Statute of Westminster Adoption Act), and the status quo was never seriously challenged until after World War II. Sir Robert Stout (Former Chief Justice in New Zealand), called for the abolition of appeals in 1908 (Cornes, 2015), and serious debates about abolishing the JCPC took place at four junctures after the Westminster Act of 1931. In the 1940s, Chief Justice Sir Michael Myers presented a cabinet report focusing on the establishment of "a Commonwealth Court of Appeal" (Wilson, 2010, p. 12). This idea was raised by then Attorney General Hanan in 1965 at the Third Commonwealth and Empire Law Conference in Sydney, Australia, but it lacked political support in New Zealand (Wilson, 2010). In 1987, the Labor Party government (1984)(1985)(1986)(1987)(1988)(1989)(1990) (1991) in which the JCPC upheld the state's regulatory power over financial services and natural resources respectively (Richardson, 1997).
In 1996, The National Party introduced a bill to replace the JCPC. The general elections later in 1996 forced the National Party into a coalition government with the New Zealand First Party which opposed the abolition of appeals to the JCPC (Courts of New Zealand, n.d.; Wilson, 2010). Richardson (1997) concludes that this effort was also partially derailed by the JCPC's decision favoring the government's Party formed the government with the Alliance Party, which was also ideologically left-leaning (Pierce, 1999) and supported replacing the JCPC. On taking office, Prime Minister Clark and her cabinet were very purposeful in the handling of this issue, trying to ensure that those who raised objections during previous attempts were heard. The cabinet had "extensive consultation with Maori, the legal profession and the business community before it committed to the policy" (Wilson, 2010, p. 17). This set the stage www.scholink.org/ojs/index.php/eprd Economics, Politics and Regional Development Vol. for the public debate with the December 2000 release of "Discussion Paper: Reshaping New Zealand's Appeal Structure" (Wilson, 2000), produced by the Office of the Attorney General in close consultation with the Prime Minister, Deputy Prime Minister, Minister of Justice, and Minister of Maori Affairs.
The Discussion Paper (Wilson, 2000) provides five official rationales for pursing this constitutional change as follows: • "National identity and independence" (1) • "Many Commonwealth countries have abolished appeals to the Privy Council" (2) • "Few New Zealand cases are heard by the Privy Council" (2) • "New Zealand's changing international relationships" (2) • "Cost and accessibility" (3) Margaret Wilson was the Attorney General (1999)(2000)(2001)(2002)(2003)(2004)(2005); in a lecture at Inner Temple in London, Wilson (2010)  This included revisiting of the neo-liberal economic policies championed by the more conservative National Party government (Wilson, 2010). Charting a new path required harnessing the governing institutions, including the judiciary, to effectively develop and implement policies that advance the new economic and political agenda. Wilson (2010), therefore, reflects on the governing coalition's view that the JCPC was not the appropriate venue to support the new vision. In fact, the JCPC was viewed as having a limited role in producing necessary precedents for the following reasons: (1)  am satisfied that it is not appropriate in New Zealand" (as cited by Wilson, 2010, p. 8).
Second, as the Labour Party took control, there needed to be a re-examination of the vision for the state and the citizens. The prevailing view was that this issue was best handled by "the New Zealand community and by judges familiar with that community and responsible for the maintenance of the rule of law" (Wilson, 2010, p. 24). The new vision focused on the relationship between parliamentary sovereignty and the power of judicial review of the policies of the elected governing coalition. The governing coalition's view was that New Zealand's domestic and international realities had changed and placed on "...both parliament and the courts new responsibilities... in a relationship better described as a 'collaborative enterprise'... rather the traditional command model…" (6).
The Wilson (2000) arguments are reminiscent of those put forward by Hogg and Bushell (2007) in addressing this issue in Canada. They describe the relationship between the courts and the legislature as a "dialogue" (79). Without explicitly pointing a finger at the JCPC as being an unsuitable partner in New Zealand's "collaborative enterprise", Wilson (2010)  represents a 27 percent drop from the preceding period. This comparison of state success before the JCPC is presented in Figure 2.

Where the State Is the Respondent in Favor of the State between 1990 and 2005
Even taking into consideration that there was lag time between when the petition was filed and when the case decision was handed down by the JCPC, the difference between the two periods compared is stark and may be indicative of a growing disconnection between the new governing coalition's vision for New Zealand and the JCPC.
While the governing coalition parties were united in favor of abolishing appeals, the opposition parties were equally opposed. The National, New Zealand First, ACT New Zealand, and United Future Parties all voted against the bill. Besides the opposition parties, there were other opposing voices to the proposal to abolish the JCPC. These voices were predominantly from the legal and business communities, though there was no majority consensus for or against the proposed change (Justice and Electoral Committee Report, 2003). As most of the cases from New Zealand that reached the JCPC were commercial disputes, those that opposed the abolition stressed that it would negatively affect the confidence of large companies and international investors in New Zealand (Story, 2001). The editor of the New Zealand Law Journal, Bernard Robertson was one such opponent who felt that the JCPC contributed to "good political policy", and a change was politically short-sighted (cited in Story, 2001, p. 22 What did the public think about the proposal to abolish appeals to the JCPC? The Discussion Paper (Wilson, 2000)  public concern and what concern that was expressed was amongst the elites" (18).
Tracing the change in the political environment, the specified goals, and the deliberate process of the governing coalition in imposing its will, supports my theory that a governing coalition expects a final appellate court to be a reliable partner in the process of producing and upholding public policy. In New www.scholink.org/ojs/index.php/eprd Economics, Politics and Regional Development Vol.

The Gambia
At independence in 1965, the Gambian constitutional system reflected the Westminster model. Dawda Kairaba Jawara    • Overall score (Freedom Score): Free, (1); Partially Free, (0); and Not Free (-1) The Gambia receives a favorable rating regarding political rights and civil liberties in 14 of the 21 years reported. Figure 3 presents the scores in the three categories discussed above from 1972 to 1998, reflecting the dramatic decline starting in 1994. The Gambia is rated as "partially free" ("0") from 1981 to 1988, which coincides with the failed coup d'état in 1981 and the short-lived federation with Senegal from 1984 to 1989.

Figure 3. Gambia's Freedom House Scores from 1972 through 1998 (Freedom House 2014)
Based on the preceding discussion, The Gambia enjoyed a consistent period of democratic rule after independence in 1965 through 1994. During that period, the state was a party in three cases, with a favorable JCPC decision in only one of the three. The state was the appellant in one of the three, and the decision was not in its favor. In the other two cases where the state was the respondent, it prevailed in one. There are several reasons for the small number of JCPC cases involving the state. First, the lower courts handed down decisions favorable to the governing coalition, thereby removing any need to appeal to the JCPC. Second, using the GDP per capita as a proxy for resource availability, the costs of accessing the JCPC is prohibitive, except in cases considered particularly important to litigants. The literature also discusses the high costs associated with accessing the JCPC (O'Conner & Bilder, 2012;Swinfen, 1987;Taylor, 2005). While the costs may be a deterrent for many litigants, if the state is dissatisfied with lower court decisions it is prepared to use resources to access the JCPC, as it perceives the court to be a reliable partner. Those conditions may have contributed to the status quo. Despite the costs, and regardless of the number of cases that it actually adjudicates, the states often perceive there to be a benefit to having this reputable extraterritorial court (Lange, 2004;Seow, 1997 As long as governments are wise enough to leave alone the rights of appeal to some superior body outside Singapore, then there must be a higher degree of confidence in the integrity of our judicial process. This is most important (cited in Seow 1997, para. 15).
This was the case, in Attorney General of Gambia v. Momodou Jobe, adjudicated by the JCPC before the coup d'état in 1994. It was an appeal to the JCPC against a decision of the Gambian Court of Appeal that declared four provisions of the Special Criminal Court Act (1979) to be ultra vires, or in violation of the 1970 Constitution. The JCPC declared that only Section 8(5) was ultra vires. Section 20(2) guaranteeing the fundamental right to the "presumption of innocence" until proven guilty and was, therefore, unconstitutional and void (Jammeh, 2011). Senghore (2010)  The second unfavorable decision to the governing coalition is Alhaji Malang Kanteh v The Attorney General and others (1975) which involved the sale of confiscated property by the police. The appellant claimed the property was on lease to another who was subject to a writ of fieri facias, or legal authority to seize property, to satisfy a judgment for another party. The value of the claim in 1975 was US$832, which is more than twice the GDP per capita. While this may be significant to the appellant, the decision did not undermine a policy of the governing coalition resulting in a negative perception of the JCPC. During this period after independence, therefore, the governing coalition did not perceive a serious disconnection with the JCPC and, at the same time, may have considered this credible extraterritorial court as part of the constitutional right of appeals and beneficial to the state and the Gambian legal system.

of military rule by the Armed Forces Provisional
Ruling Council (AFPRC). The event transformed The Gambia from constitutional rule to rule by military decree (Jeng, 2013). This drastic change in the Gambian political environment is captured in www.scholink.org/ojs/index.php/eprd Economics, Politics and Regional Development Vol. the Freedom House scores (2019) which rates The Gambia as "not free" (-1) from 1994 onward. After the coup, Amnesty International (1995) reports the change in governance by the AFPRC led by President Jammeh. Their 1995 report outlines a pattern of arbitrary arrests and detentions, restrictions on political activities, movement of leaders from the Jawara government and the PPP, and the harassment of journalists and owners of newspapers in an apparent effort to stifle criticism of the government. The AFPC transformed itself into a political party led by the coup d'état leader turned civilian president, Yahal Jammeh (Jammeh, 2011;Perfect, 2010;Wolf, 2019).
The August 6, 1996, referendum returned The Gambia to constitutional rule as the Second Republic (Jeng, 2013) and its new Constitution replaced the JCPC with the Supreme Court of Gambia as the final appellate court. As a result, access to the domestic court became less expensive than accessing the JCPC in London. While President Jammeh and the governing AFPRC had been able to intimidate and attack opposition supporters and constrain the media (Perfect, 2010), a situation the 2015 Amnesty International Country Report (2015) describes as repressive legislation "further restricting freedom of expression and increasing punitive measures against journalists" (para. 1), Gambians, were also more than ready for return to constitutional rule (Senghore, 2010).
The Gambia's democratic freedom scores have declined dramatically since 1993 when Freedom House rated The Gambia as "Free" (1). From 1994 to 1998, The Gambia received a rating of "Not Free" for each year. The change in environment illustrates the authoritarian shift in the regime, which increased the sensitivity of the governing coalition to challenges-including potential challenges before the JCPC-over which the governing coalition had no control.
In the absence of specific formal and recorded debate about the role of the JCPC, tracing the effects of specific decisions of the JCPC between the 1994 coup d'état and leading up the adoption of the new constitution in 1996 is instructive. The state is a party to one of the four JCPC appeals between 1994 and 1998. In West Coast Air Limited v Gambia Civil Aviation Authority and Another (1998) damages were assessed against the state at US$500,000 for breach of contract. Considering the GDP per capita of about US$500, that assessment was a relatively large sum for breach of contract and probably enough to make the governing coalition resentful of the JCPC which overturned the lower domestic court of appeals. The low number of cases could reflect the lower court's support for the policies of the governing coalition, which would limit the governing coalition's need to rely on the JCPC. The results put a spotlight on the rare cases decided by the JCPC and highlight the potential risk of having challenges to policies adjudicated unfavorably by an exterritorial court.
The governing coalition was, therefore, aware of the potential existed for unfavorable JCPC decisions.
Conversely, the regime was aware that it had control over the domestic courts and their role as a potential important ally in its quest for legitimacy. This is exemplified by the case of Saihou Sanui Ceesay & Sons Limited V. AMRC (1994). The issue is the constitutionality Sections 18 (1) and (2) (1) and (2)  that Juwara filed a petition to appeal to the JCPC. The governing coalition replaced the JCPC with the Supreme Court of Gambia in October 1998, before the petition before the JCPC could be considered (Senghore, 2010). This effectively ended the possibility of the petition going any further and any risk of the JCPC handing down a decision unfavorable to the governing coalition. Mass (2012) states, "Jammeh administration was determined to cover up its dirty linen… decided to change the Gambia's www.scholink.org/ojs/index.php/eprd Economics, Politics and Regional Development Vol. This is an effective loophole for the president as the Commission is appointed by the president (Senghore, 2010). These powers of appointment and dismissal are not available to the governing coalition when the JCPC serves as the final appellate court.
In a more democratic state, the governing coalition may be less reliant on the court for legitimacy.
Furthermore, more democratic regimes may be less willing to pursue policies likely to be challenged in court. Authoritarian states lack the legitimacy of elections, making them more likely to want the approval of the courts (Moustafa, 2014;Solomon, 2007). Looking at the unfavorable decisions, the new governing coalition of The Gambia witnessed firsthand the power of the JCPC to undermine its policies.

Summary
The JCPC was an important part of the expansion, consolidation, and governance of the British Empire.
What makes the phenomenon of the persistence of the JCPC unique is the fact that the U.K. made the court available to former colonies, and some new states did accede to the JCPC upon independence, effectively outsourcing the final appellate court to the former colonial power-an apparent affront to the traditional understanding of state sovereignty (Brown, 2002).
There is no denying the judicial experience, quality, and prestige attributed to the JCPC. In fact, the quality of the JCPC decisions is an important part of its credibility and not seriously questioned in the literature. New states which have not yet established an independent reputation for impartial adjudication can benefit from the right to appeal to the JCPC as it increases the credibility of their policy preferences (Voigt, Ebeling, & Blume, 2007). Additionally, for some of the new states, continued affiliation with the JCPC confers some degree of legitimacy on their judicial system. The statement by the then-Prime Minister Lee Kuan Yew of Singapore illustrates that the retention of the JCPC is a sign to the world of a commitment to judicial independence exemplifies this (Seow, 1997;Tan, 2015). The former President of The Bahamian Bar Association, Ruth Bowe Darville, also supports the retention of the JCPC (Rolle, 2012), pointing out that those who advocate for its removal are "treading in very dangerous waters", as "litigants who come before us with multi-million dollar cases and they see us as a great financial centre, they need assurance that the Privy Council [JCPC] is there" (Mohr, 2011, p. 126).
The JCPC, therefore, has a long and prominent role in the judicial development of colonies and many sovereign states. The states that retained ties vary in size, population, socioeconomic conditions and geographic location. While the JCPC decisions establish precedents for those states, its decisions continue to be of assistance in the development of the jurisprudence of states that have severed ties (Gleeson, 2008). The persuasive value of JCPC decisions is recognized throughout the British Commonwealth and may even have similar authority on courts in England (Wilkie, 2016), underscoring the strong hold of the colonial legacy.
The case studies on New Zealand and The Gambia illustrate the struggles some countries go through to eventually sever ties with the JCPC. In the case of The Gambia, it took the adoption of a new constitution following a coup d'état and repressive military rule that damaged the country's human rights record. The regime was uncertain that the decisions of the domestic courts would be upheld by the JCPC. Officially, appeals to this vestige of colonialism was an affront to state sovereignty, and with the post-coup d'état constitution, the right of appeal was removed. Constitutional changes that excluded the right to appeal to the JCPC was also the case in other former colonies including Nigeria, Tanzania, Sierra Leone, Uganda, Kenya and India, which followed very quickly after independence. The change in New Zealand did not occur after paradigm shift in governance following a coup d'état but a change of political party ushering in a new direction for the state which found the JCPC incompatible with the vision. Further, like former colonies including Canada, Malaysia, Singapore, and Sri Lanka, breaking www.scholink.org/ojs/index.php/eprd Economics, Politics and Regional Development Vol. another court each has little direct control over. Ironically, while the court is in Port of Spain, Trinidad, that country along with the seven others, has yet to sever ties with the JCPC and accede to the CCJ. The phenomena of the CCJ with both original and appellate jurisdictions (much like the JCPC) developing within a framework of regional integration and the relationship of the states with the court needs further examination and provides fertile areas for future research.