III - THE APPELLATE JURISDICTION OF THE CARIBBEAN COURT OF JUSTICE

Q. Why does the region need its own court of last resort for civil and criminal matters?

A. 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.

Q. 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?

A. 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 behavious

Q. Would the Judges of the CCJ be vulnerable to political manipulation?

A.  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!

Q. But are the Judges of the Court not paid by Governments which can exert decisive informal pressure on them to deliver self-serving judgments?

A. 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.

Q. Is there any plausible assurance that the judicial pronouncements from the CCJ are of the desired quality?

A. 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.

Q. 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”?

A. 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.

Q. 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?

A. 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.

Q. 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?

A. 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).

Q. 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?

 A. 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.