Caribbean Court of Justice: Are we ready yet?

Godfrey Smith

Source: www.flshpointbelize.com

Date of Publication: April 3, 2007
Posted by: Godfrey Smith
Tuesday, April 03, 2007

In an interview in May 1999 Lord Browne-Wilkinson, the then President of the Privy Council, intimated that appeals to that Court from the Caribbean should end. He urged the Caribbean to establish its own final court on the ground that the ultimate court of appellate jurisdiction of a state, should be in the state, staffed by citizens of that state and not by outsiders.

Persistent prevarication

The Caribbean Court of Justice (CCJ) was inaugurated on April 16th 2005. The historic first sitting of the CCJ took place on 8th August 2005 at the Court’s offices in Port of Spain, Trinidad and Tobago. The sitting was to consider an application for special leave by a Barbadian company to appeal from a decision of the Barbados Court of Appeal. Since then about five cases have been brought before the CCJ, three more from Barbados and two from the Cooperative Republic of Guyana. The court is now firmly established and fully operational for those Caricom member states that have subscribed to it. As the second anniversary of the inauguration of the CCJ approaches, it is perhaps timely to review where we are with the CCJ and to ask: is Belize now ready to fully sign on?

The idea for the setting up of a Caribbean court to replace the Judicial Committee of the Privy Council (Privy Council) in England was first seriously raised at a Caricom Heads of Government meeting in Kingston, Jamaica in 1970.

More than thirty years later, on February 14th 2001, ten Caricom countries finally signed unto the Agreement in Barbados, establishing the Caribbean Court of Justice: Antigua and Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St. Kitts and Nevis, St Lucia, The Republic of Suriname and the Republic of Trinidad and Tobago.

The passionate debate in Caribbean countries that preceded the signing of the Agreement is rivaled only by the persistent prevarication by some countries over how tightly – if at all- the CCJ should be embraced.

Belize & the CCJ

In Belize, the government attempted to fully embrace the CCJ. The CCJ has two distinct aspects. The first is called the original jurisdiction. This refers to the court’s power to deal fully with all trade disputes and trade-related issues that might arise between two or more member states of Caricom. This is considered to be a sine qua non for the successful operation of the Caribbean Single Market and Economy (CSME).

The second is called the appellate jurisdiction. This refers to the court’s power to fully and finally determine appeals from decisions of Courts of Appeal in the Caribbean. In this regard, the CCJ was in conflict with the British Privy Council which, under the national constitutions of the majority of Commonwealth Caribbean countries, was the court empowered to dispose of appeals from Courts of Appeal throughout the region.

For Belize to replace the Privy Council with the CCJ required a constitutional amendment supported by no less than three-quarters of the members of the House of Representatives. The ruling PUP had lost its three-quarter majority shortly after its general election victory in 2003 with the untimely death of its Cayo South representative, Mr. Agripino Cawich.

The government was able to pass legislation introducing the CCJ in its original jurisdiction because this required only a simple majority. But the Opposition blocked the legislation abolishing the Privy Council and introducing the CCJ as the final court of appeal for all criminal and civil matters. The Opposition copycatted the Trinidad & Tobago Opposition by withholding support for the legislation unless the government agreed to certain “political reform” proposals and financial support for Opposition constituencies. The government refused and the legislation floundered.

Retain the relic

The case against replacing the Judicial Committee of the Privy Council with the CCJ has four essential arguments. First, that judges of the CCJ will not be as insulated from political interference and may therefore not enjoy the Olympian aloofness of their British counterparts in the Privy Council. Second, that financial resources which are vital for the permanence and continuity of a CCJ are scarce and may not be forthcoming from undisciplined and profligate Caribbean governments. Third, that the money would be better spent improving magistrates courts which deal with 80% of cases in Caribbean countries. Fourth, that retaining the Privy Council as the final court of appeal is more attractive to foreign investors and costs less since it is paid for by the British.

A question of sovereignty

Ranged on the other side of the debate are also four basic arguments. First, that a CCJ is more consistent with our status as independent, sovereign states. Why should we be self-governing in all aspects but yet have a foreign court as our final court of appeal? Second, that the CCJ is more conducive to the development of a regional jurisprudence that is sensitive to the history, culture and ethos of Caribbean people. Third, that in relation to foreign investors, the majority of Caribbean cases going up to the Privy Council are criminal cases and only a handful are civil cases. Fourth, that the Privy Council is far removed from the Caribbean both geographically and in its appreciation of local circumstances.

Competence, independence, permanence

With two years having passed since its inauguration, the court is manned by competent judges some of whom held the highest judicial offices in their respective countries. These judges of the CCJ enjoy security of tenure and hold office until they attain the age of seventy-two years and can only be removed for inability to perform the functions of office or for misbehaviour.

They were appointed by an independent Regional Judicial and Legal Services Commission comprised of representatives from the Organization of the Commonwealth Caribbean Bar Association and the Organization of the Eastern Caribbean States Bar Association, a rotating Chairman of the Judicial and Legal Services of a member country, a rotating Chairman of a Public Service Commission of a member country, two persons from civil society nominated jointly by Secretary-General of Caricom and the Director-General of the OECS, two distinguished jurists nominated jointly by a Dean of one of the Faculties of Law and the Chairman of the Council of Legal Education, and two persons nominated jointly by the Bar or Law Associations of the member states.

Caricom governments have contributed to a US $100 million trust fund the interest of which fund the operations of the CCJ. There is therefore no need for the court to go cap in hand to politicians for its upkeep, thereby opening it to the possibility of political interference.

While we have been intently focusing on the comparative advantages of the CCJ through the prism of the Privy Council for several decades now, we may well have missed an important if embarrassing point. In an interview that was published in the May 1999 issue of The Lawyer, Lord Browne-Wilkinson, the then President of the Privy Council, intimated that appeals to that Court from the Caribbean should end. Browne-Wilkinson complained that appeals related to death row prisoners in the Caribbean had created a burden on the time and resources of that Court. He urged the Caribbean to establish its own final court on the ground that the ultimate court of appellate jurisdiction of a state, which has to make important policy decisions on legal principles, should be in the state, staffed by citizens of that state and not by outsiders.

Yet, in Belize, during the debate on the Bill to abolish the Privy Council, Her Majesty’s Loyal Opposition shamelessly hung onto the coattails of the Privy Council and questioned the brainpower of Caribbean judges vis-à-vis their British counterparts. It’s time for the government to reintroduce the Bill and flush out the Opposition on this crucial issue of sovereignty and regional identity. Belize should abolish the Privy Council and bring on the CCJ.