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The Caribbean Court of Justice (CCJ) is the Caribbean regional judicial tribunal established on 14 February 2001 by the Agreement Establishing the Caribbean Court of Justice. The agreement was signed on that date by the CARICOM states of: Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; Suriname; and Trinidad & Tobago. Two further states, Dominica and St. Vincent & The Grenadines, signed the agreement on 15 February 2003, bringing the total number of signatories to 12. The Bahamas and Haiti, though full members of CARICOM, are not yet signatories, and because of its status as a British colony, Montserrat must await Instruments of Entrustment from the UK in order to ratify. The Agreement Establishing the Caribbean Court of Justice came into force on 23 July 2003, and the CCJ was inaugurated on 16 April 2005 in Port of Spain, Trinidad & Tobago, the Seat of the Court.
No. It had a long gestation period beginning in 1970, when the Jamaican delegation at the Sixth Heads of Government Conference, which convened in Jamaica, proposed the establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council.
How is the Caribbean Court of Justice different from the Caribbean Court of Appeal proposed by Jamaica at the Sixth Heads of Government Conference?
The Caribbean Court of Justice is more than a court of last resort for Member States of the Caribbean Community. In addition to replacing the Judicial Committee of the Privy Council, the CCJ is vested with an original jurisdiction in respect of the interpretation and application of the Treaty of Chaguaramas, which established the Caribbean Community. In effect, the CCJ exercises both an appellate and an original jurisdiction.
In its appellate jurisdiction, the CCJ hears and determines appeals in both civil and criminal matters from common law courts within the jurisdictions of Member States of the Community and which are parties to the Agreement Establishing the CCJ.
In its appellate jurisdiction, the CCJ is the highest municipal court in the region for states which accede to its appellate jurisdiction. In its original jurisdiction, the CCJ discharges the functions of an international tribunal, applying rules of international law in respect of the interpretation and application of the Treaty of Chaguaramas. In this regard, the CCJ functions like the European Court of Justice, the European Court of First Instance, the Andean Court of Justice of COMESA and the International Court of Justice. In short, the CCJ is a hybrid institution – a municipal court of last resort and an international court with compulsory and exclusive jurisdiction in respect of the interpretation and application of the Treaty of Chaguaramas.
At the present time, there is still some lingering opposition to the CCJ. Surveys in some Member States, however, have showed as many as 80% of the persons surveyed supported the Court. In some jurisdictions, while there is little opposition to the Court in its original jurisdiction, there is more opposition to it in its appellate jurisdiction.
Opposition to the CCJ was informed by various considerations, such as suspicion of the unknown and professional resistance to change. Some members of the legal fraternity also entertained reservations about the ability and willingness of Member States of the Caribbean Community to provide adequate funding for the Court on a sustainable basis. Other stakeholders question the likelihood of the CCJ attracting to its benches judges of the required expertise and legal erudition to inspire confidence among members of the legal community and litigants generally. All of these considerations have been addressed. Defenders of the Court perceive of this institution as completing the independence of Commonwealth Caribbean States. Other supporters of the Court consider that an indigenous Court consisting of regional judges is best suited to pronounce on issues of regional importance and, in so doing, contribute to the development of a regional jurisprudence.
What is the relationship between the Caribbean Court of Justice (CCJ) and the CARICOM Single Market and Economy?
The CARICOM Single Market and Economy (CSME) is established by the Treaty of Chaguaramas as revised by nine Protocols. The main purpose of the CCJ’s original jurisdiction is to interpret and apply the Treaty, (as revised). This is done by:
- hearing and deciding on disputes between countries or between persons and countries which involve issues which the treaty deals with, or
- by giving advisory opinions when member states ask for them, or
- by having national courts and tribunals refer issues to the CCJ for interpretation.
By interpreting and applying the Treaty which establishes the CSME, the CCJ will determine in a critical way how the CSME functions. The CSME creates an extensive range of rights and obligations for States parties to the Treaty and, through these States parties, for CARICOM nationals.
Why must CARICOM nationals enjoy rights and discharge obligations through their States? Why cannot such nationals enjoy rights and discharge obligations without the intervention of their States of nationality?
This is an important question which requires a clear response. Firstly, it must be borne in mind that treaties, like the Treaty of Chaguaramas, are governed by international law. International law is based on rules which are quite different from the legal rules normally applied by judges in our national courts. One important difference is that rules of international law ordinarily apply only to countries which are called subjects of international law. Only in exceptional cases are those rules directly applicable to individuals. Consequently, individuals only enjoy rights set out in international instruments through their country on which those rights are conferred initially. For private entities or individuals to enjoy rights under an international instrument, the instrument would have to be implemented into local law by the country concerned.
What are the exceptional circumstances in which rights and obligations under international law are conferred on individuals directly?
One such exceptional circumstance is the example of the European Union created by the Treaty of Rome as amended by the Treaty of Maastricht and which grants rights and creates obligations directly for citizens.
The Treaty of Rome created supranational institutions like the Council of Ministers and the European Commission which are intended to make laws directly for European nationals – that is, without the intervention of their national assemblies. The Caribbean Community established by the treaty of Chaguaramas is an association of sovereign states and not a supranational body.
Why can’t the Organs of the Caribbean Community, like the Conference of Heads of Government make laws directly for Caribbean Community nationals without the intervention of their national assemblies or parliaments?
This is because the Caribbean Community is an association of sovereign States and any decisions of the Organs of the Community must be enacted into local law by national assemblies before such decisions can create rights and obligations for nationals of the Caribbean Community. This is an extremely important feature of the Caribbean Community!
Why can’t the Member States of CARICOM agree to have the Treaty of Chaguaramas interpreted and applied in some way other than the CCJ? The Treaty of Chaguaramas has existed for more than twenty-five years without a Court. What is all this fuss now about the need for a Caribbean Court to interpret and apply the Treaty?
The old Treaty of Chaguaramas provided for arbitration in the event of disputes concerning the interpretation and application of the Treaty. Unfortunately, however, the arbitral procedure was never used and serious disputes were never settled, thereby causing the integration movement to be hampered. Moreover, the rights and obligations created by the CSME are so important and extensive, relating to the establishment of economic enterprises, the provision of professional services, the movement of capital, the acquisition of land for the operation of businesses, that there is a clear need to have a permanent, central, regional, institution to authoritatively and definitively pronounce on those rights obligations. The Caribbean Court of Justice is that authoritative institution.
Arbitration tribunals reach decisions which are binding only on the parties to a dispute. However, the decisions of the CCJ will create legally binding norms for all Member States which are parties to the Agreement establishing the CCJ.
Definitely! The Caribbean Community is largely a capital importing region. Foreign investors seeking to invest normally prefer a stable macro-economic environment based on predictable laws in order to determine outcomes. The CCJ is necessary for such an environment!
How can the CCJ create a stable macro-economic environment suitable for the attraction of foreign capital?
The CCJ has been configured to ensure that the laws of the CSME are uniform and predictable. Firstly, the CCJ has exclusive jurisdiction in respect of the interpretation and application of the Treaty. If it had concurrent jurisdiction with other Courts of the Community, there is a likelihood of conflicting opinions on important economic, commercial and financial issues thereby creating uncertainty and unpredictability in the business climate and macro-economic environment! Stability of expectation is a fundamental requirement for investment decisions.
So what happens where another Court in the Caribbean Community has a case before it with an issue which involves a question concerning the interpretation and application of the Treaty? Must the Court decline to accept jurisdiction and pronounce on the case?
No! The Court must accept jurisdiction and refer the particular issue to the CCJ for determination before delivering judgment, which must respect the CCJ’s determination of the relevant issue! A similar requirement of referral obtains in the European Union and it has been credited with promoting social and economic cohesion among the Member States.
By signing on to the Agreement Establishing the CCJ, all Member States of the Community have submitted to the jurisdiction of the CCJ in the exercise of its original jurisdiction which is compulsory and exclusive. The European Court of Justice does not enjoy exclusive jurisdiction but when a court of last resort is hearing a case in which there is an issue concerning the interpretation or application of the Treaty of Rome, the court must refer the issue to the European Court of Justice for determination.
Member States signing on to the agreement Establishing the CCJ agree to enforce its decisions in their respective jurisdictions like decisions of their own superior courts. The CCJ has held that the Revised Treaty of Chaguaramas authorises the Court to make coercive orders against Member States.
Stare decisis is peculiar to common law jurisdictions but it has been imported into the Agreement Establishing the CCJ 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.
The Agreement Establishing the CCJ does provide for the revision of decisions in specified circumstances. But such revisions are intended to satisfy the ordinary requirements of justice! Judgments are not to be revised lightly. Indeed, in the ordinary course of events, decisions of the CCJ constitute stare decisis.
Rules of law prescribe the conduct to be observed. The Rules of Law applied by the CCJ in the exercise of its original jurisdiction would normally be rules of international law. In its appellate jurisdiction, the CCJ would apply national laws and rules of common law.
Since Suriname and Haiti have civil law jurisdictions, can they participate in the regime establishing the CCJ?
This would depend on the jurisdiction of the CCJ to which access is desired. Both civil law and common law jurisdictions can participate in the CCJ in the exercise of its original jurisdiction. This is so because the CCJ in exercising its original jurisdiction is discharging the functions of an international tribunal applying rules of international law. International law rules are common to both common law and civil law jurisdictions. However, some changes would be required if Suriname or Haiti wished to participate in the appellate jurisdiction of the CCJ where municipal law rules and not international law rules apply.
The simple answer is to ensure independent judicial decisions in the region in order to complete the process of independence. However, on a simpler 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 will understand our societies, our culture and our values.
But is it not reasonable to assume that the Judges of the Privy Council being removed from the social environment are likely to be more dispassionate in interpreting and applying the law?
Some argue this point. Law however, is not mechanical. It is reflection of what the people in the society want for their society. Law is the normative outcome of the cut and thrust of human interactions based on collectively determined or generally accepted social values. It must continuously adjust to its environment.
Consequently, persons interpreting and applying the law should be attuned to the relevant dynamics of social interaction, which determine the quality and intensity of human intercourse, and the values conditioning such dynamics. And by this is meant the values that make us cry; the values that make us laugh; the values that make us happy or sad; the values that make us responsible, productive, creative, caring, proud people: in short, the values that condition our uniqueness as a people. To be far removed from the immediate environment of social interaction to which the law applies would facilitate a dispassionate analysis of human events and judicially objective decisions but only to the detriment of desirable social behaviour and social cohesion. In short, the decisions may tend not to reflect the needs of the society, because the people applying the law would not understand the society. What is an insult in one society is not an insult in another, what is appropriate behaviour
It is generally accepted in our societies that independence of the judiciary is a vital and essential ingredient of the rule of law, a basic principle of governance in CARICOM Member States. To ensure independence of the members of the Court, there are appropriate provisions in the Agreement Establishing the CCJ to provide for credible institutional arrangements.
Firstly, unlike the situation with the European Court of Justice, where Judges are appointed by the Ministers of Governments, Judges of the CCJ are appointed by a Regional Judicial and Legal Services Commission (RJLSC). The composition of the RJLSC should offer comfort to the citizens of the region. The President of the CCJ chairs the Commission. Of its 11 members, four are to be appointed on the recommendations of the legal fraternity; two are to be chairpersons of national judicial and public service commissions, two are to be appointed by the Secretary General of CARICOM and the Director-General of the OECS jointly after consultation with non-Governmental organisations.
The Agreement also addresses the security of tenure of Judges. Removal of Judges from office requires an affirmative recommendation of a tribunal established for the purpose. The President of the Court is appointed by the Heads of Government of participating States on the recommendation of the commission and may be removed for cause only on the recommendation of the commission acting on the advice of a tribunal established for the purpose. The judges of the European Court of Justice, as indicated above, and the European Court of First Instance, are appointed by the Ministers of Government and those of the Andean Court of Justice are elected by States.
In effect, the Caribbean Community is the only integration movement whose judges are not directly appointed or elected by Member States.
But are the Judges of the Court not paid by Governments which can exert decisive informal pressure on them to deliver self-serving judgments?
No, they are not! The Heads of Government have set up a US $100 m Trust Fund to meet expenses of the Court. The Trust Fund enables the expenditures of the Court to be financed by income from the Fund. In this way, the expenditures of the Court including the remuneration of the Judges are not dependent on the disposition of Governments. The building of the CCJ is being provided by Trinidad and Tobago as part of its responsibility as host country.
Is there any plausible assurance that the judicial pronouncements from the CCJ are of the desired quality?
Yes! The Caribbean region has had a strong tradition of erudite judges and sound decision making. Also, candidates for the bench may come not only from the Caribbean, but from any territory of the Commonwealth and from Civil Law countries. In fact, of the first bench, one judge is a Dutch national who has been a judge in the Caribbean for over twenty years and one is British who has once been a temporary judge in the Caribbean. Having cast the net so widely, there is a plausible assurance that judges of the required expertise and legal erudition will continue to come forward for appointment. In any event, critics from the legal community expressing misgivings about the quality of judges should not forget that, the quality of judicial determinations is not unrelated to the quality of submissions by counsel. Indeed, the record would confirm that behind any sound judicial pronouncement in the region, and there are very many of them, the submissions of counsel were very well researched, informed and persuasive in respect of both issues of law and fact. Finally, some comfort must be taken from the fact that most appeals to the Privy Council are dismissed.
It is interesting to note, though, that the present President of the CCJ is a member of the Privy Council and the President-designate is a member of the Privy Council. There are other Caribbean judges who are members of the Privy Council. The President and the President Designate may be invited to sit by the Head of the Supreme Court of England and Wales, but have never been invited to do so.
Does the renewed interest in the establishment of the Caribbean Court of Justice have anything to do with the decision of the Privy Council in “Pratt and Morgan”?
The unfortunate coincidence of those events is a matter of grave concern. However, the answer must be NO and should be placed in historical perspective. What is often forgotten by detractors of the Court is that the revived interest in the Caribbean Supreme Court or Caribbean Court of Justice, as it is now called, had its origin in the Report of the West Indian Commission (1992) which predated the landmark decision of the Privy Council in Pratt and Morgan (1993) by one year. Indeed, the recommendation for the establishment of a Caribbean Supreme Court in substitution for the Privy Council and vested with original jurisdiction concerning the interpretation and application of the Treaty of Chaguaramas, even though one of the most seminal determinations of the West Indian Commission, was anticipated twenty years before by the Representative Committee of OCCBA set up to examine the establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council. In short, if Pratt and Morgan was a watershed in Caribbean jurisprudence, the West Indian Commission’s recommendation for a Caribbean Supreme Court was not an innovation in Caribbean judicial institutional development and is largely unrelated to popular perceptions of required sanctions for socially deviant behaviour. In point of fact, one of the most compelling arguments for the establishment of the Caribbean Court of Justice is the need to have an authoritative, regional institution to interpret and apply the Treaty, as amended, in order to create the CARICOM Single Market and Economy. But, unfortunately, the original jurisdiction of the Caribbean Court of Justice 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.
Why does the Agreement Establishing the Caribbean Court of Justice provide for withdrawal from the regime thereby conveying a perception of political convenience and impermanence?
It is a rule of international law that treaties must be observed in good faith (pacta sunt servanda). However, in exceptional cases, such as a fundamental change of circumstances (rebus sic stantibus), a State may, as an attribute to sovereignty and in the national interest, withdraw from a treaty regime with the consent of either contracting parties if no withdrawal permission is set out in the relevant instruments subject to of course, to the engagement of any international responsibility that may be involved. To withdraw from the CCJ, a country must give five years notice and does not escape its financial obligations.
Would the retention of appeals to the Privy Council inspire foreign investor confidence, especially in the case of large investments, thereby facilitating a better investment climate?
There can be no doubt that credibility of the judicial sector reinforces investor confidence and promotes foreign direct investment. Undoubtedly, the Judicial Committee of the Privy Council has an international reputation for sound judgments and does inspire investor confidence. However, the stark reality is that the process of judicial settlement involving the Privy Council is too tardy to offer much comfort to the foreign investor. Furthermore, the court systems of the Member States are being improved as judicial reform efforts are well underway in most Caribbean jurisdictions. The CCJ is hastening that process. In fact, foreign investors with large sums to invest opt for self-contained instruments which include disputes settlement provisions tending to favour the ICSID route,that is the International Convention for the Settlement of Investment Disputes sponsored by the International Bank for Reconstruction and Development (IBRD).
There are obviously many aspects of the CCJ to be understood. How are the people of the region expected to learn and understand the facts surrounding the CCJ, the benefits that can come with its establishment, and how to access those benefits?
The communication component is certainly a very important consideration. That is why, prior to the inauguration of the Court, there was already in progress a regional public education programme, designed to foster understanding in relation to the CCJ, the reasons for its establishment, the rules which will guide it, and especially, implications relating to its original jurisdiction and the critical relationship to the CSME.
This public education effort was spearheaded at the national level, by national debate and dialogue, in order to adequately represent various interests, and address any questions or concerns arising within the national context. Many people however continue to express the view that not enough has been done in the way of public education. Now that the Court is in operation, a public education programme is being undertaken by the Court Administrator’s department. In fact, the production of this document is part of that programme.
The idea of a Caribbean Court is not new. It has been 30 years in incubation. Now that its time has come – this critical investment in our future viability – the real concern must be how to get it right.
“The genesis…goes back to 1901 when the Jamaica Gleaner Newspaper, in an editorial comment, surmised that the Judicial Committee of the Privy Council might be out of joint with the times and serious consideration must be given to establishing a replacement, a regional court of last resort…In 1947 however, colonial governors of the Commonwealth Caribbean, meeting in Bridgetown, Barbados, resuscitated the idea of a regional court of last resort, but once again, the idea did not commend itself generally to competent decision-makers.”
“Closing the Circle of Independence ”, The Hon. Mr. Justice Duke Pollard (2004)