'The CCJ and the Legal Profession'

Firmly stands the CCJ Analysis
by Rickey Singh

Sunday, September 30, 2007

Source: Jamaica Observer

A West Indian jurist of the Caribbean Court of Justice (CCJ) has made a strong plea for the region's legal fraternity to help in maintaining "the integrity" of the Port-of-Spain- based institution.

For Vincentian-born Adrian Saunders, former acting chief justice of the Eastern Caribbean Supreme Court, the CCJ "must be able, at all times, to command support and receive encouragement from the legal profession".In delivering the feature address at a conference of the Bar Association of the Organisation of Eastern Caribbean States (OECS) in Grenada last weekend, Justice Saunders argued that the region's legal profession was, after all, "the natural constituency" of the CCJ.

Speaking on the topic, 'The Caribbean Court of Justice and the Legal Profession', the former chairman of the Judicial Education Institute of the Eastern Caribbean Supreme Court recalled that the region's legal fraternity was foremost in its principled advocacy of Caricom substituting the Judicial Committee of the Privy Council with a Caribbean Court of Appeal.

In his assessment, from that early period of commendable support by the legal profession for such a regional appeal court to the inauguration in April 2005 of the CCJ, greater has become the necessity for the legal fraternity to demonstrate such encouragement for the court.

The CCJ, with its panel of seven eminent jurists from the Caribbean, United Kingdom and The Netherlands, stands unique in having original jurisdiction for settlement of disputes arising from the Caricom Treaty on trade and investment matters, while serving as a final appellate court for civil and criminal cases.The court's ceremonial inauguration that had coincided with the initial impeachment proceeding against Trinidad and Tobago's Chief Justice Satnarine Sharma by Prime Minister Patrick Manning, underscored a battle won with the support received from the region's legal fraternity against any political involvement in the appointment or removal of its judges.

No 'Hangman's court'

Saunders dismissed as false and without any merit, attempts by some critics to caricature the CCJ as a so-called "hangman's court" in defence of their own anxieties to retain access to the Privy Council.

Speaking also with some 19 years of experience in private practice as an attorney, Saunders told the participants at the OECS Bar Association meeting that it was important for the CCJ and development of Caribbean jurisprudence for there to be the widest possible access to the regional court as a final appellate institution, instead of a continuing dependence on the Privy Council.

Currently, only Barbados and Guyana have the CCJ as their final appellate court. The Bahamas, Suriname and Haiti have, for different reasons, shown no interest in the CCJ.The Eastern Caribbean states have been rationalising their seeming lack of enthusiasm to delink from the Privy Council by pointing to constitutional hurdles to be overcome, but none has so far initiated any move for the CCJ to replace the Privy Council.

The new Jamaica Labour Party administration has pledged to let the people of Jamaica decide on this issue by way of a national referendum. The Opposition People's National Party has always been in favour of the CCJ but ran into problem of implementation by a Privy Council judgment.

In Trinidad and Tobago, both the People's National Movement and the United National Congress have been doing the 'twist' by their on-and-off approaches to membership of the CCJ. Latest signal from Prime Minister Manning is that access of the CCJ would be a priority issue once his party is returned to power following the new general elections.

Our jurisprudence

In his articulation on Caribbean jurisprudence, Justice Saunders noted that its promotion was "not just about civil and criminal matters, there is also the original jurisdiction of the CCJ to consider." There is no Privy Council or other international precedents here to adopt, discard or massage. Our CSME (Caricom Single Market and Economy) jurisprudence starts with a blank slate. "There is, of course, a considerable body of case law of the ECJ (European Court of Justice). The reality is that the ECJ, in many ways, made the European Community what it is today..."

He reminded his audience that the "broad platform" on which Caribbean jurisprudence rests "is the common, historic, political, economic and cultural experiences we enjoy in this region; our mutual history of slavery, indenture, displacement, resistance and struggle..."

"Colonialism", he said, "has bequeathed us a legacy of democratic structures and traditions premised on those that exist in the United Kingdom. With few exceptions, we boast the same limitations of the Westminster parliamentary system, a comparable body of pre-independence law and written constitutions modelled along the same lines..."

It was on "the solid edifice" of a shared body of law and judicial decision-making, said Saunders, that Caribbean jurisprudence was being strengthened with the CCJ."It is an authentic jurisprudence," he said, "that exists and that has contributed and continues to contribute to an enrichment of the common law."

Saunders, therefore, could not think of a more fitting description than to label this jurisprudence as "Caribbean" and to declare that "there is no better-suited entity to promote it than a Caribbean Court of Justice - with the support of the region's legal fraternity."