CCJ a creature of international treaty

It is important to recognise that the CCJ is a creature of several international treaties and protocols. The CCJ is funded, for example, by international treaty enabling it to be relatively independent of regional governments. The judges of the CCJ are selected by the Regional Judicial and Legal Service Commission, itself a creature of international treaty. Thus the interpretation of any issue involving the jurisdiction and treaty obligations of the CCJ is done by reference to the Vienna Convention on the Law of Treaties (VCLT).

However, as clearly specified in the Revised Treaty of Chaguaramas, the CCJ is the sole arbiter on issues involving trade and other matters related to Caribbean development arising out of that Treaty. This is referred to as the original jurisdiction of the CCJ.

The CCJ also has an appellate jurisdiction, conferred by international treaty, to determine matters sent to it from Supreme Courts of Member States of the Caribbean Community, once those Member States by constitutional amendment, confer the appellate jurisdiction upon the CCJ. Barbados, Belize and Guyana as Member States of the Caribbean Community have already done so.

The Constitution of TT contemplates changes to its judicial system by constitutional majority. This explains the rationale of the Prime Minister’s statement that Government’s intention will be put into effect by taking legislation to Parliament. However, the question arises, whether it is more appropriate in the circumstances to proceed by way of a referendum in addition to the constitutional majority. The government of Jamaica attempted to cede appellate authority to the CCJ. The attempt failed as the Government did not conduct a referendum as constitutionally required for such a significant change. In Independent Jamaica Council for Human Rights 1995 Ltd v Marshall Burnett anors 2005 UK PC, the Privy Council intimated that even if a constitution did not technically require a referendum (as is the case in TT) it would nevertheless be appropriate in accordance with constitutional theory that such a significant change to the legal system should have the endorsement of the people. It would appear that the Court was influenced by the fact that the CCJ, as a creature of treaty, could be varied by executive action of Members to the Treaty without reference to, or external to, the concerns of the people of Jamaica for whom it purported to be the bedrock of their system of administration of justice. This observation is equally valid to the circumstances of TT. The outcome in Marshall Burnett was that the Privy Council was loath to hold the legislation valid without the benefit of a referendum, a constitutional requirement.

Should a referendum be held in Trinidad and Tobago, two questions to be put to the people of Trinidad and Tobago immediately come to mind: 1. Should the CCJ be the final appellate court on all matters or 2. Should the CCJ be the final court on all criminal matters.

While there are examples of gradual withdrawal from the jurisdiction of the Privy Council in the Commonwealth, logic and commonsense dictate that the transition for Trinidad and Tobago should not be gradual particularly as many so-called “criminal matters” attract constitutional issues as illustrated by the death penalty cases.

The Privy Council emerges from centuries of tradition as legal adviser to the Sovereign. The CCJ as a creature of treaty has no such tradition. Its jurisprudence, however, traverses potential member states located in South America, Central America and the Caribbean, comprising populations, largely migrant, from Africa, India, China and Europe with vestiges of original populations in some member states. The genesis of the current legal systems in these states reflects the diverse history of colonisation in these states and ranges from common law, hybrid common law/civil law and civil law systems.

The CCJ articulated its policy as a final and appellate court in the case of AG of Barbados v Joseph and Boyce (2006). It stated in that case that its main purpose as a final court was to “promote the development of a Caribbean jurisprudence, a goal which Caribbean courts are best equipped to pursue.” In the evolution of this jurisprudence, Caribbean Community Law, it would make up its own judicial mind while carefully and respectfully considering the opinions of final courts of other Commonwealth countries, particularly those of the Privy Council. By so stating, the CCJ signalled the notion of the finality of its decisions as a final and appellate court.

Carla Herbert is an attorney-at-Law at Trinity Chambers.