The recent announcement from St Kitts/Nevis last month that the Government is considering the issue of accession to the appellate jurisdiction of the Caribbean Court of Justice (CCJ) is duly noted in the public domain.
The CCJ continues to assert that countries joining it will "complete the cycle of their independence" upon severing their link with Her Majesty's Privy Council.
I have challenged the CCJ on this point in previous articles on the ground that a convention has arisen that the Chief Justice of the CCJ becomes a member of Her Majesty's Privy Council. The basis of my argument is based on the fact that both Michael de la Bastide and Sir Dennis Byron became members of the Privy Council in 2004 just prior to the CCJ coming into existence.
For me, where the conundrum arises is in the conflict between asserting the severing of the links of countries from their recognition of the Judicial Committee of the Privy Council as their final court of appeal, while the Chief Justices of the CCJ have retained personal links as members of Her Majesty's Privy Council.
How do you lobby for termination of the link to the Privy Council, while retaining your personal membership of the very same body having regard to the nature of the oath that is taken by anyone who becomes a member of Her Majesty's Privy Council?
Everyone who becomes a member of the Privy Council recites the following oath:
"You do swear by Almighty God to be a true and faithful Servant unto the Queen's Majesty as one of Her Majesty's Privy Council. You will not know or understand of any manner or thing to be attempted, done or spoken against Her Majesty's Person, Honour, Crown or Dignity Royal, but you will let and withstand the same to the uttermost of your power, and either cause it to be revealed to Her Majesty Herself, or to such of Her Privy Council as shall advertise Her Majesty of the same. You will in all things to be moved, treated and debated in Council, faithfully and truly declare your Mind and Opinion, according to your Heart and Conscience; and you will keep secret all Matters committed and revealed unto you, or that shall be treated of secretly in Council. And if any of the said Treaties or Councils shall touch any of the Counsellors, you will not reveal it unto him, but will keep the same until such time as, by the Consent of Her Majesty, or of the Council, Publication shall be made thereof. You will to your uttermost bear Faith and Allegiance unto the Queen's Majesty; and will assist and defend all Jurisdictions, Pre-eminences and Authorities granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States or Potentates. And generally in all things you will do as a Faithful and true Servant ought to do to Her Majesty. So help you God."
(See: David Rogers-By Royal Appointment, Biteback Publishing Co, London, 2015, pp. 2-3).
The revelation of the oath of a Privy Counsellor by Rogers in his book has unearthed the dimension and scope of the duty of personal loyalty to Her Majesty that must be undertaken by anyone who takes that oath.
Without the oath, you cannot become a member of Her Majesty's Privy Council. It has been publicly advertised that both Michael de la Bastide and Sir Dennis Byron are members of Her Majesty's Privy Council. At the same time, the former was and the latter is the Chief Justice of the Caribbean Court of Justice.
The position of the CCJ is that the independent countries of the Commonwealth Caribbean should complete the cycle of their independence by severing links with the Privy Council and adopting the CCJ as their final court of appeal.
How does one interpret that part of the oath that says: "You will to your uttermost bear Faith and Allegiance unto the Queen's Majesty; and will assist and defend all Jurisdictions, Pre-eminences and Authorities granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States or Potentates. And generally in all things you will do as a Faithful and true Servant ought to do to Her Majesty."
This will require further research and investigation now that it has been revealed. It will be difficult for anyone who has taken that oath to speak out publicly about any interpretation of the oath itself because of the personal burden of secrecy imposed upon such a person.
However, as a region coming to terms with the narrative of the court to complete the cycle of independence by severing our links to the Privy Council, it is something about which we must pause and consider.
Is it possible that a privy counsellor can resign their membership of the Privy Council?
According to Rogers: "Being able to resign was a new development and it is still questionable whether this is constitutionally correct." (p. 10).