November 28, 2008

Commentary: Is there a future for the Caribbean Court of Justice?

Commentary: Is there a future for the Caribbean Court of Justice?
Published on Wednesday, November 26, 2008
Source: Caribbean Net News

By Oscar Ramjeet It is more than three and a half years since the Caribbean Court of Justice (CCJ) was inaugurated with two countries, Guyana and Barbados accepting the CCJ as the final court of appeal and although seven governments have changed in the region within this period, the number still stands at two, with no other country joining.
We see a change of government in St Lucia, Jamaica, Bahamas, Grenada, Belize, British Virgin Islands and Barbados since the establishment of the regional Court on April 16, 2005, but the new governments have not initiated steps to join the Court. The BVI is a dependent country and is not a signatory to the agreement setting up the CCJ, and Barbados is already a member.

This is very disturbing and what is more troubling is that there is no indication that any other country has expressed its willingness to rid the Privy Council as the final Court and accept the CCJ as the final Court.
I have written several articles asking about the future of the Court. I even suggested that the authorities, maybe CARICOM, seek the assistance of a lobbyist, someone of the statute of Sir Shridath Ramphal, former Commonwealth Secretary General and who served as CARICOM advisor, to woo governments as well as the opposition to join the court, but this has not materialized.
But, instead, steps have been taken by the CCJ to launch a series of public education initiatives to enhance the knowledge of the Bar and Bench in the region and to invite business, labour and members of the public to be part of the exercise.
CCJ judges went to Jamaica and Antigua last month in their education drive to dispel some of the misconceptions of the court's operations. The CCJ was established by CARICOM member states not only as the final Court of Appeal replacing the Privy Council, but to resolve disputes between Caribbean countries that are parties to the revised Treaty of Chaguaramas.
The revised treaty seeks to promote economic integration among the States Parties and to create a single CARICOM Single Market Economy (CSME). Although Antigua and Barbuda, Bahamas, Belize, Grenada, Dominica, Jamaica, Trinidad and Tobago, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, and Suriname have not yet put in place the required mechanism to accept the CCJ as their final court, they can nevertheless use the CCJ to deal with treaty matters and international law issues, but after 42 months only one single CSME issue reached the CCJ.
It is a case filed by the Trinidad Cement Limited and TCL Guyana Incorporation against the Co-operative Republic of Guyana AR 1/2008, an application for Special Leave to appear as parties before the Court.
The question therefore remains is whether the Court is serving very little use. Will it be a white elephant and will it eventually die like The West Indies Federation? A lot of money is being spent on the regional court, which is grossly under-utilised, since only two of the twelve countries are making full use of the court and only a handful of cases, mainly from Guyana, were dealt with.
Funds to operate the well-equipped Court in Port of Spain are administered by a Trust Fund, which has been established and capitalised in the sum of US$100 million by the Caribbean Development Bank, and the CARICOM Secretariat has had indications of interest in contributing to the Fund from sections of the international donor community.
The Heads of Government have mandated Ministers of Finance to provide funding for the recurrent expenses of the Court for the first five years of its operation. The question is what happens after April 16, 2010, the expiration of the five-year period? An eminent Caribbean Lawyer, Dame Dr Bernice Lake, QC, an Anguilla Attorney, told the Daily Observer in Antigua the day the CCJ judges were in Antigua, that regional governments disenfranchised the public when they set up the CCJ without referenda.
Dame Bernice said, "The Caribbean governments have not done what the constitutional prescription envisages" and criticised the regional governments for rushing into the setting up of the court and now essentially leaving the court in limbo.
She added, "I believe that it has been the case that the political leaders who spearheaded this new court have taken the view that this was to be their legacy and they have rushed into without putting into place the underpinnings of education and consultation." It is very unfortunate that the regional court is still limping after such relatively long period.
I have no doubt that the judges would like to have much more work in order to develop a Caribbean jurisprudence since they are better suited to the needs of the Caribbean people because they are grounded in the region.
Dame Bernice suggested that the governments of all countries requiring constitutional referenda should conduct the processes simultaneously in an effort to prevent the result of earlier referenda unduly influencing subsequent ones.
But, in my humble and respectful suggestion, before this can be done, CARICOM should take the lead in this regard by organising with an influential lobbyist to work along with the ten defaulting governments, as well as the opposition, in order to achieve this goal.

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