Idea for CCJ more than a century old

THE CARIBBEAN Court of Justice (CCJ), which was officially inaugurated in Port-of-Spain yesterday, ushers in a new era in a region which had been discussing the need for such an institution for more than a century. Way back in 1901, an editorial in the Jamaica Gleaner put forward the view that the Privy Council should be replaced with a Caribbean court to deliberate on matters of final appeal. This fact was noted by Caricom Secretary General Edwin Carrin-gton, who stated in a 2003 radio interview: “Since the beginning of the last century, the people of the Caribbean and their leaders have been making out a case for establishing their own court and discontinuing that dependence on the Privy Council in the United Kingdom for final judgment on matters of life and death. That call was repeated at various intervals throughout the 20th century.”

Forty-six years after that Glea-ner editorial was published, a meeting of governors of Carib-bean countries reportedly discussed the need for a court “within easy access and in keeping with the spirit of the people of the region.” However, the matter didn’t progress from the discussion stage and was shelved for several decades. The debate on the establishment of a court of last resort for the Caribbean was revived in April 1970 when then Jamaican prime minister Edward Seaga put forward a resolution at a Caricom heads of government meeting in Kingston.

This call for a Caribbean Court of Appeal as the final Court of Appeal for the Commonwealth Caribbean was reinforced by the Organisation of Commonwealth Caribbean Bar Associations (OCCBA). In 1972, the OCCBA recommended establishment of such an institution. In 1987, during a heads of government meeting in Trinidad and Tobago, regional attorney-generals were given a mandate to consider replacement of the Privy Council with a Caribbean Court of Appeal. At Grande Anse, Grenada, in 1989, the historic decision was made to create “a regional Court with appellate jurisdiction for criminal and civil matters to replace the Privy Council and original jurisdiction to resolve disputes among member states.”

In the years since then, the Caribbean has been preparing for the court’s establishment as well as the creation of the Caricom Single Market and Economy (CSME). Giving momentum to that thrust was the landmark document, “A Time For Action,” produced in the 1990s by the West Indian Commission. The document affirmed that a Caribbean Court of Appeal was likely to attract a larger number of appeals and since it would be manned by West Indian jurists, it would be capable of handing down better judgments on regional matters. According to Carrington, the CCJ is essential at this stage in the development of the region because “without it the Caricom Single Market and Economy will certainly not function effectively.”

“For it is inevitable that in the cut and thrust of the commercial and economic life involving trade in goods, in services, trans-community investment and movement of skilled labour as well as the dynamics of social life within the market, there will be disputes,” he explained. “And it would be unrealistic to expect that the individual courts of each of our 15 member states would uniformly interpret the Treaty that governments the Single Market and Economy. The differences which are virtually certain to arise would be a recipe for chaos.” The Caricom Secretary General added: “The people of our region deserve to have the dignity of their fate being decided by the learned legal lights of our society. It is as the former Chief Justice of Trinidad and Tobago Michael de la Bastide said the “completion of our Independence.”

In my view with the establishment of the CCJ, the circle will have been completed and we would have taken a giant step towards making the Caribbean whole.” According to Duke Pollard, Director of the Caricom Legislative Drafting Facility and a consultant on all development aspects of the CCJ, one of the major challenges facing the court is that “the original jurisdiction of the CCJ and its importance for the success of the CSME is little understood and even less appreciated by many members of the legal fraternity at the present time.” Pollard said the region needs the CCJ to “ensure autonomy of judicial decisions in the region in order to complete the process of Independence.” “However, on a more pragmatic basis, for the laws of the region to inspire confidence and ensure voluntary compliance, they should mirror the collective social ethos of our peoples and, to be relevant and responsive, should be interpreted and applied by judges who have internalised the values informing the content of that collective social ethos.”

President of the CCJ is Michael de la Bastide, former Chief Justice of TT, who was appointed to the Judicial Committee of the Privy Council last year. Judges of the CCJ are appointed by the Regional Judicial and Legal Services Commission and they can be from any territory in the Common-wealth. While the seat of the CCJ is in TT, as circumstances warrant, it may sit in the territory of other member countries. The Caribbean is not unique in establishing its own court of final jurisdiction. More than 30 other Commonwealth countries have severed links with the Judicial Committee of the Privy Council as their final Court of Appeal. These countries include Canada, India, Australia, Tanzania and Ghana.