Cutting the Umbilical Cord: The Final Appellate Court in Former British Colonies

All legal systems have a court of last resort as the final judicial authority for public policy. For example, in the United States of America, the U.S. Supreme Court is the national final appellate court that provides answers to important legal questions that underpin public policy. Some sovereign nations also become members of a supra-national judicial entity which then serves as the court of last resort for those nations. Why would a state allow a court situated outside its borders the final decision making power on cases originating from within its borders? The case study is the British Commonwealth and Privy Council (PC). First, what factors influence the decision to utilize a supra-national court as the final appellate court in that state? Second, is the goal of the state in choice of appellate court? I hypothesize that the length and type of colonial rule influences whether a state abolishes appeals to the PC at Independence. This I test using a probit regression with 56 former British colonies (n-56). I also hypothesize that the higher the ratio of appeal court decisions upheld by the PC verses those overturned/dismissed by the PC is more likely to lead to greater state credibility operationalized by higher growth in GDP. This I test with a fixed and a random effect model using panel data. I will examine decisions in cases originating in six states (Australia, Canada, Gambia, Malaysia, Singapore and Sri Lanka) that retained appeals to the PC after Independence. This research contributes to our understanding of the relationship between supranational courts and states in two major ways. First, it will increase our understanding of the influence of colonial rule on the decision of whether a state to abolishes appeals to the Privy Council at Independence. Specifically, I explore whether the length and type of colonial rule--direct and indirect colonial rule (Lange 2009) -- is significant in the decision of a state to server ties with the Privy Council and establish their own national final appellate court. Second, my research will go beyond Voigt et al (2007) who examines the effect of the presence or absence of the right of appeal to the PC. My research will provide an understanding of the role the actual PC decisions play in the effort of the sampled states to establish credibility. Finally, I will briefly review now defunct supra-national courts such as the East African Court of Appeal (1967-1977) and a more in depth examination of the emergence of the Caribbean Court of Justice (CCJ) in 2005. I will examine the CCJ with regard to issues such as the integration effect (Haas 1961) of the Caribbean Community (CARICOM) and changes in norms as regards the importance of the colonial ties to the U.K. (Voigt et al 2007).

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