MODEL CARICOM YOUTH SUMMIT
 

The CARIBBEAN COURT OF JUSTICE
Background Paper prepared and submitted by the CARICOM Secretariat


INTRODUCTION

The idea of having a Caribbean court as the final court of appeal was first proposed at the Sixth Meeting of Heads of Government of the Caribbean Community in April 1970 in Jamaica. It was proposed to substitute or replace the Privy Council as the final court of appeal for CARICOM Member States. Since then, there has been open debate on the pros and cons on having such a court. All the while, the matter was being considered by CARICOM committees and after various studies and recommendations, a firm decision was made by the Heads of Government at the Tenth Meeting of Caricom in Grand Anse, Grenada in 1989 to establish a Caribbean court.

In 1992 the West Indian Commission was mandated to formulate proposals by which a course could be charted for the Caribbean in the community of nations, into the twenty-first century. It interviewed West Indians far and wide and listened to their concerns. In its celebrated Report "Time For Action" it recommended the establishment of a Caribbean Supreme Court in substitution for the Privy Council.It also recommended that this Court be vested with Original Jurisdiction to hear and adjudicate on disputes concerning the interpretation and application of the Treaty of Chaguaramas as Revised by the nine Protocols.

Most detractors of the Court tend to recognise the Appellate jurisdiction of the Court only. They have failed to note the importance of the Original jurisdiction in the success of the Caricom Single Market and Economy regime and the role it will play in the strengthening of the integration movement.

The present state is that there is a vigorous drive to have the Court established by the Member States of Caricom. A Project Unit has been tasked with the responsibility of ensuring its establishment .The Project Unit is conducting a Public Education Programme [PEP] to enlighten the various Caribbean publics about the Court. This requires a co-ordinated effort on the part of National Committees, which have been formed in the various Member States to promote the Court. Each National Committee has been supplied with a diskette containing all the instruments of the Court, which would assist them in having debate, television programmes, radio call-in shows and other media in getting the message across about the Caribbean Court of Justice. A Public Relations Consultant firm has been contracted to work with the Project Unit.

The purpose of this paper is to provide basic information and guidance on the Caribbean Court of Justice to assist those participating in the Rotary's Model CARICOM Youth Summit to elucidate and expand on the issues in respect of the Court.It is not intended to discuss every aspect of the Court but to provide sufficient information for meaningful debate.

The Establishment of the Court

The CCJ  will be set up through a number of Instruments, chief of which is the Agreement to Establish the CCJ. It contains all the main provisions.

Part 1 establishes the Court with:
  • Original and Appellate Jurisdictions
  • The Seat of the Court
    The Seat of the Court will be located in Trinidad and Tobago. However, the Court may sit in the territory of any other Contracting Party as circumstances warrant.
  • The Constitution of the Court
  • The Establishment of the Regional Judicial and Legal Services Commission.
    It sets out its composition and responsibility for appointment and discipline of judges of the Court, except the President.
  • Tenure of Office of judge
  • Oath of Office

Part II: Original Jurisdiction

International Law is the law to be applied by the Court in the exercise of its Original Jurisdiction.

Articles 1X(a) and 1X(f) give the CCJ exclusive and compulsory jurisdiction to hear and deliver judgment on disputes concerning the interpretation and application of the Treaty.

The Revised Treaty of Chaguaramas will create a macro economic climate to counter the threat of globalisation in the Caribbean. This Revised Treaty will establish The Caricom Single Market and Economy. The Treaty, as revised by the nine Protocols, will confer rights and impose obligations on States and States parties and it is envisaged that the Original jurisdiction of the Court will be occupied the most.

Where a court or tribunal of a Member State is seized of an issue whose resolution involves a question concerning the interpretation or application of the Treaty, the court or tribunal shall refer the question to the CCJ for determination before delivering judgment. The purpose of this provision is to ensure certainty in the law. Business persons seeking to invest in this macro-economic environment need to predict outcomes. To further cement this aspect for certainty, the Agreement provides for stare decisis   or judicial precedent. This is not a concept of International Law but is adopted to ensure certainty. The doctrine of stare decisis or judicial precedent requires the Court to pronounce in the same manner provided the circumstances of the case are similar to one which was heard already.

Another feature of the Agreement is that it allows nationals or individuals to pursue claims against a state. International Law only recognises states as subjects. Therefore in an action before an International tribunal the parties would be States. For example State A v State B. Locus standi allows an individual the opportunity to apply to the CCJ for special leave under certain conditions to espouse his action against a State.

Part II of the Agreement also provides for:
  • Advisory Opinions by the Court
  • Compliance with judgments of the Court
  • Compulsory jurisdiction of the Court
  • Application of International Law
  • Intervention by Third Parties
  • Application for Interim Measures
  • Revision of Judgments
  • Rules of Court
  • Alternative Dispute Resolution

Part III:  Appellate Jurisdiction

The CCJ in exercise of its appellate jurisdiction is a Superior Court of record with such jurisdiction and powers conferred on it by this Agreement or by the Constitution or other law of a Contracting Party.

Appeals shall lie to the Court from decisions of the Court of Appeal of a Contracting as of right, with leave, or with special leave of the CCJ itself. A person may appeal from a civil or criminal matter.

This Appellate jurisdiction is the same which is presently exercised by the Privy Council and which is enshrined in the Constitutions of all independent Member States. A lot of debate is being generated under the Appellate jurisdiction.

The recommendations of the West Indian Commission Report "Time For Action" pre-dated the landmark decision of the Privy Council Pratt and Morgan by about a year, yet critics blur the truth by stating that the CCJ is being hastily established to carry out capital punishment.

Since the decision of Pratt and Morgan, the Privy Council has been adjusting its criteria to embrace such matters as physical conditions in prison and prisoners' appeals to the Inter- American Commission on Human Rights (IACHR). In the recent decision in the Jamaican case of Lewis etal v R, the Privy Council reversed itself from a position it once held .The Privy Council held that murder convicts who apply to the Governor General for commuting of their death sentences, must have the right of representation before the local Jamaican Privy Council and must be provided with all the material used by the body to arrive at its decision. The Privy Council also held that in cases where convicts have petitioned the IACHR, the recommendations of that the Jamaican Privy Council should take body into account.

Lord Hoffman in his dissenting judgment stopped short of accusing his four colleagues of :  

- being influenced by their own opposition to the death penalty  

- appropriating to themselves the role of the legislature

and warned that frequent changes in ruling could undermine the administration of justice in the Caribbean.

This decision is seen as a backdoor attempt by the Privy Council to abolish capital punishment in the Caribbean.It has also given a new filip to the debate for the CCJ to be established by Member States of Caricom. Others have a contrary opinion. What do you think?

Lord Browne-Wilkinson the President of the Privy Council is reported to have said in an interview published in the May 1999 issue of The Lawyer, that appeals from the Caribbean should end. Death row had created a burden on the time and resources of the court. He urged the Caribbean to establish its own final court of appeal.

Part 111 of the Agreement contains other important provisions.
  • Financial Provisions
    Every State that is a signatory to the Agreement has to pay its proportionate share of expenses of the CCJ. Ministers of Finance of the signatory States are mandated to make provision in their National Budgets for the first 5 years. A Trust Fund is being established for the purpose of sustaining the operations of the court and will be administered by the Caribbean Development Bank. Contracting Parties are required to put up a Bond in the amount of their assessed contribution for the first 5 years. Failure to pay future contributions shall lead to forfeiture of the Bond.

    The past history of contributions by Caribbean States to regional institutions has not been very good and the above mentioned provisions are seen as a way of ensuring contributions to the CCJ.Non payment by a State of its contributions to the budget of the Court would result in the offending State being unable to access the Court's services. However, an individual of the offending State would not be denied access to the Court in the Original or Appellate jurisdiction of the Court.
  • Right of Audience by Attorneys-at-Law or Legal Practitioners
    Attorneys-at-Law or Legal Practitioners duly admitted to practice law in the Courts of a Contracting Party are not required to satisfy any other condition in order to practise before the CCJ
  • Privileges and Immunities to be recognised and granted to the judges and officers of the Court to be laid out in a Protocol.
  • Amendment
  • Signature
  • Ratification
  • Entry into Force
    The Agreement shall enter into force upon the deposit of instruments of ratification or accession by at least 3 Member States.
  • Accession
  • Withdrawal
  • Implementation
  • Reservation

Other Instruments Of The Court
  • The Draft Enabling Bill To Implement The Agreement Establishing the CCJ
    Since each Member State that is a signatory to the Agreement is a sovereign State, it means that each State would be required to pass this Bill in its Parliament and comply with the necessary Constitutional requirements to alter or amend that State's Constitution to allow for the replacement of the Privy Council by the CCJ.
  • Rules of Court CCJ(Appellate Jurisdiction)
  • Rules of Court CCJ(Original Jurisdiction)
  • Agreement Establishing the Seat of the Court and the offices of the Regional Judicial and Legal Services Commission between the Government of Trinidad and Tobago and the Caribbean Community.
  • Protocol on the Privileges and Immunities of the CCJ and the Regional and Legal Services Commission.
  • Regulations of the Regional and Legal Services Commission

Conclusion

The establishment of the CCJ is still in its embryonic stage. At the twenty-first Head of Government Conference it was decided to intensify the PEP with a view to have the Agreement signed by all Member States before the end of the year. The PEP is vital to the establishment of the CCJ because the critics of the Court have done a lot of damage in respect of bad press. There is a need to reduce, or if possible, to dispel this negativity and put the CCJ in the proper light so that Caribbean people would see the benefit of the establishment of the Court as a means of strengthening regional integration. Now is the time for us to exercise our judicial sovereignty and chart our own course.

Issues For Discussion

Model CARICOM Youth Summit is invited to:

Agree on the establishment of the CCJ as the replacement for the Privy Council as well as an International tribunal to hear and determine disputes in relation to the interpretation and application of the Revised Treaty.

Offer an opinion on the independence of the judges of the CCJ

Offer an opinion on whether Member States should have a referendum on replacing the Privy Council as the final court of appeal.

Offer an opinion on any other issues you may find appropriate.

BIBLIOGRAPHY

Pollard, Duke.  "The Caribbean Court of Justice What it is What it does". (Georgetown :  CARICOM Secretariat,  2000)

Rawlins, Hugh A. "The Establishment of the Caribbean Court of Justice: The History and Analysis of the Debate", (Georgetown  : CARICOM   Secretariat,  2000)

CARICOM Secretariat.  "Caribbean Court of Justice- Your Questions Answered" (Georgetown : The Secretariat,  2000)

 

20th October, 2000.
 
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