The central position of the Privy Council is that the CCJ, as the replacement for the Privy Council could not be validly incorporated into the judicial system of Jamaica except by way of entrenchment in the Constitution of Jamaica. It held that the legislation establishing the CCJ did not entrench the CCJ and therefore could undermine certain provisions in the Jamaican Constitution, that are accorded special protection by being entrenched.

These entrenched provisions could be altered only by employing the special legislative procedure appropriate for altering them and this had not been done by the Jamaican Parliament. This represents a significant set back for the establishment of CCJ as the ultimate appellate tribunal in and for Jamaica, and the Jamaican Government is considering how best to respond to this aspect of the judgment.

It is important to note that the ruling of the Privy Council did not differentiate between the exercise by CCJ of its original jurisdiction in relation to the interpretation and application of the Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy, and of its appellate jurisdiction as the ultimate court of appeal for Jamaica. This may well be because the Jamaica legislation was an integrated one dealing with both a regional and Appellate Jurisdiction.

Because of this, it is not clear at this early stage what is the implication of the ruling for the timely establishment of the CCJ in relation to the exercise of its original jurisdiction to ensure the efficient functioning of the CARICOM Single Market and Economy (CSME).

The decision is being examined by the Office of the General Counsel of the CARICOM Secretariat in conjunction with the Legal Affairs Committee (LAC) of the Community in order ascertain the full scope and implications of the ruling. The LAC will meet next week, 10-11 February 2005, in Paramaribo, Suriname, to discuss the matter with a view to advising the Community on an appropriate response.