May 16, 2009

Review of the CCJ - 5 years later

After five years only two countries accept CCJ as final appellate court

Published on Saturday, May 16, 2009  Print Version
Source: Caribbean Net News

The Caribbean Court of Justice (CCJ) entered its fifth year on April 12 since it was inaugurated at a lavish ceremony in Port of Spain, which was attended by nearly all the Heads of Government of the Caribbean Community (CARICOM) as well as most legal luminaries in the region. 

The Court was, however, initially established in February 2001, more than eight years ago. 

It is very unfortunate that, after such a long time, only two countries, Guyana and Barbados, have accepted the CCJ as the final court. No other country has joined after 48 long months. This is indeed a misfortune since most Caribbean countries rid themselves of colonial rule more than four decades ago: Jamaica and Trinidad and Tobago in 1962, Guyana and Barbados in 1966 and the Eastern Caribbean countries a few years later. 

Since these former British colonies achieved political independence so long ago, one would have expected them to have judicial independence as well, especially since they have highly qualified and experienced judges. 

I had the privilege of visiting the Court while in Trinidad for the Fifth Summit of the Americas and was impressed by what I saw -- besides the well equipped libraries, spacious conference room, robing room, etc., I was elated with the Court room’s appearance, with the most modern electronic equipment, which is said to be one of the best in the world. The facilities include: a document reader/visual presenter; the ability to use laptop computers; DVF/VCR; audio/video digital recording (microphones situated throughout the courtroom); wireless internet access, and audio/video transcripts. 

Former Trinidad and Tobago Attorney General Ramesh Maharaj said that the judges have little to do and it is a waste of taxpayers’ money. His statement is somewhat surprising since it was under his party's administration that the Court was established and up to this day Trinidad and Tobago has not joined. 

Dominica’s Prime Minister Roosevelt Skerrit made a sweeping statement when he said that if the region is not serious about the CCJ, it should close down the court. 

Skeritt, a few months ago, asked his Attorney General to engage the local Bar Association as well as the political opposition with a view of having the decision fully implemented. I have not heard the progress of those discussions. 

However, there is some glimmer of hope that at least one more country will join. Belize’s Prime Minister Dean Barrow, one of the first graduates from the Council of Legal Education in the Caribbean, has announced that his country will take steps to remove the Privy Council as the final Court of Appeal. 

I contacted his office on Tuesday and was advised that a Bill will be presented to Parliament next month to pave the way to remove the Privy Council as the final Court. Three-fourths of parliamentary votes are required, but it is understood that the opposition will support the move since it had advocated the measure when it was in government. 

There is no doubt that there is reluctance on the part of governments to get rid of the Privy Council as the final court for varying reasons. Jamaica at one stage claimed that the CCJ will be a hanging court, but they cannot press that issue now because that government recently passed legislation to retain the death penalty. 

The JLP government was in power when the idea of setting up of the CCJ first started, but now the party, which is back in power after 15 years, is somewhat reluctant -- new reasons have surfaced, including the heavy costs of maintaining the Court, pointing out that, when the first idea was mooted 20 years ago, the Jamaican dollar was much stronger, and the latest is that the Court does not have a Jamaican as a judge, although its population is nearly 2.5 million -- more than all the other 11 countries combined. 

Former Jamaican Attorney General Dr Oswald Harding, who was the AG in 1988, said that he is very disturbed that no Jamaican was appointed as judge when he knew that about eight well qualified jurists had applied. 

I have been advocating for a distinguished West Indian to be appointed as a lobbyist, but both CARICOM and the CCJ are both reluctant to do so. CARICOM, it is understood, feels it should distance itself from the CCJ, especially since it is a party to recent litigation before the Court. I refer to a law suit brought by Trinidad and Tobago Cement Company against CARICOM. 

On the other hand, the CCJ feels that it should not indulge in such an exercise; but they nevertheless held seminars in jurisdictions such as Jamaica, Antigua, Barbados, Belize on the functions and the operations of the original jurisdiction of the CCJ. 

It is worrying that CARICOM countries do not even use the CCJ in its original jurisdictions, since they do not have to seek constitutional amendments to do so. In four long years only three such matters have reached the Court. 

It is my humble and respectful view that CARICOM should have sensitised the public and ensured that the necessary legislation was in place to accept the CCJ as the final court long before the Court was established and, as Dame Dr Bernice Lake, QC, a distinguished jurist from Anguilla, put it, "The regional governments disenfranchised the public when they set up the CCJ without referenda."

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