The CARIBBEAN COURT OF JUSTICE
Background Paper prepared and submitted by the CARICOM Secretariat
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
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:
Part II: Original Jurisdiction
- 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
International Law is the law to be applied by the Court in the exercise of its Original
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:
Part III: Appellate Jurisdiction
- 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
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
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
- 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
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.
Other Instruments Of The Court
- 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.
- Entry into Force
The Agreement shall enter into force upon the deposit of instruments of ratification or
accession by at least 3 Member States.
- 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
- Protocol on the Privileges and Immunities of the CCJ and the Regional and Legal Services
- Regulations of the Regional and Legal Services Commission
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.
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
CARICOM Secretariat. "Caribbean Court of Justice- Your Questions
Answered" (Georgetown : The Secretariat, 2000)
20th October, 2000.