Third Anniversary of the CCJ

The CCJ three years on
RICKEY SINGH, Observer Caribbean correspondent

Wednesday, April 16, 2008

TODAY marks the third anniversary of the Caribbean Court of Justice (CCJ) that was ceremonially inaugurated in Trinidad and Tobago with an inter-faith service on April 16, 2005 to usher in a historic moment for the development of a Caribbean jurisprudence.

It was established to function both as a final appellate institution and with an original jurisdiction for resolution of trade disputes arising from interpretation of the revised Caricom Treaty.

Three years after its inauguration with headquarters in Port of Spain, the CCJ remains the final appeal court of just its first two member states - Guyana and Barbados. It has delivered judgments in a dozen cases between October 2005 and March 2008.

All other partner states of the English-speaking Caribbean, including its home base, Trinidad and Tobago, continue to access the Privy Council in London, consistent with an age-old colonial tradition and with no movement on the political horizon for a change in its membership status quo in the immediate future.

The Barbados-based Caribbean Development Bank (CDB) has, to its list of credits, the successful mobilisation of US$100 million on the international money market for the financing of the CCJ with a carefully crafted repayment scheme by governments of the participating member states.
While all member countries pay their contributions for the operational budget of the CCJ - estimated at approximately US$4.05 million in 2006 - only Barbados and Guyana can rightly access it as their court of last resort, plus its jurisdiction on trade disputes.

The explanation often offered by Caricom governments yet to sever links with the Privy Council is that they may first have to go the route of a national referendum. But constitutional experts have pointed out that while in Jamaica both dominant political parties have, as of last year, now committed themselves to the referendum course to determine replacement of the Privy Council with the CCJ, at least four Eastern Caribbean countries do not necessarily have to do so.

These four, all in the OECS sub-region - St Vincent and the Grenadines, St Lucia, St Kitts and Nevis, and Dominica - have the option to negotiate support for a two-thirds parliamentary majority to access the CCJ as their final appellate court, rather than resorting to a two-track approach to obtain both the required parliamentary majority and going for a national referendum.

None of this quartet of countries has attempted, under different administrations, to educate the public in favour of replacing the Privy Council with the CCJ. Instead, there continues to be the curious scenario of opposition parties often on the offensive to retain the Privy Council, particularly when they disagree with judgements of their own courts.

Focus on Jamaica
On the other hand, governing parties justify the existence of the CCJ, but without pursuing any significant initiative to move the process towards terminating access to the Privy Council and allowing unchallenged claims of their domestic political opponents.

Latest criticisms levelled at the CCJ in Trinidad and Tobago - where passionate debates often take place about the independence and integrity of the local judiciary - came last week from United National Congress parliamentarian, Senator Wade Mark.

Not only did he engage in a verbal assault against the Patrick Manning administration for, as he claimed, being part of the regional governments "wasting" some TT$400 million (US$66.4 million) annually on the CCJ, but thought it necessary to introduce the race factor with his questioning of any West Indian of Indian descent being among the appointed judges.

In plural Caricom societies like Trinidad and Tobago and Guyana, the race factor in high-profile appointments, including the judiciary, has long been a sensitive issue.It is troubling that Senator Mark should raise, at this stage, the race factor when seven distinguished legal luminaries comprise the judges of the court (two more are yet to be appointed), when making his criticisms against poor fiscal management by the Manning administration.

Incidentally, the senator is way off mark in speaking of wastage of $400 million when the total recurrent and capital budget for the CCJ in 2006, as audited, was US$7.2 million (including US$2.7 million in capital expenditure).

At present, ironically, and strange as it may seem to some, hope is being encouraged on Jamaica moving towards the promised referendum on the CCJ as its court of last resort.

The feeling is that once it takes place, the outcome will be positive in favour of terminating access to the Privy Council. Such a development could well inspire other Caricom states to cease being negative about the CCJ and broaden access.