IN just over a month – on April 16, 2015 – the Caribbean Court of Justice (CCJ) will mark the 10th anniversary of its inauguration. The creation of the CCJ is arguably the single most important event in the history of the English-Speaking Caribbean since the establishment of the Caribbean Community (CARICOM) by Treaty in 1973.
In the words of Dr Kenny Anthony, the Prime Minister of St. Lucia and a former Legal Counsel to the CARICOM Secretariat, the creation of the CCJ was “a leap into enlightenment”. Recently, in a lecture delivered at the St Augustine Campus of the University of the West Indies, Dr Anthony repeated that, in his view, the establishment of the CCJ has been “one of the major successes of (CARICOM’s) collective governance”. Few persons, who think deeply about this matter, would disagree with the Prime Minister.
Yet, there was much dithering over the establishment of the CCJ. Although the decision was taken by Heads of Government to set up the Court in 1988, 17 years elapsed before it was inaugurated. In the intervening period, the absence of confidence in the Caribbean’s self-worth was obvious in the fears that were expressed about separating from the British Judicial Committee of the Privy Council as the final appellate court. The notion that Caribbean judges could judge Caribbean events and persons with erudition and independence was rejected by many, including lawyers – some of whom made handsome fees by appearing in London, the seat of the Privy Council’s Judicial Committee.
In 1992, the West Indian Commission was adamant in declaring that the naysayers were mistaken in their view. In its report, Time for Action, the Commission was unequivocal in stating: “As CARICOM countries come to grips with issues pertaining to governance and the securing of civil society everywhere, it must be to a local, not an external, court that we must look for the sensitive and courageous development of the law”. And, as for the judicial talent for staffing the Court, the Commission was just as forthright in asserting that “there can be no room for doubt”. Recalling the many high judicial positions in which Caribbean judicial officers had served in international bodies, such as the International Criminal Court, and in many Commonwealth countries, the Commission posed the question: “What ails us that we lack the confidence to go forward?”
Showing unreserved confidence in a Caribbean Court, the Commission recommended to CARICOM Heads of Government the early establishment of the Court for two purposes: to serve as a Supreme Court “with original jurisdiction in matters arising under the CARICOM Treaty including the authority to issue orders enforcing the implementation of CARICOM decisions; and with an appellate jurisdiction from the Courts of Member States”. The Commission foresaw that the Court’s jurisdiction “should be designed to assist the evolution of CARICOM law and its uniform enforcement”.
It took 13 years after the recommendation of the West Indian Commission for CARICOM governments to finally establish the CCJ, but, unfortunately, not in the full form and not with the backing of all member-states as was envisaged. Up until Dominica’s accession to the Court on March 6 as its final appellate court replacing the Judicial Committee of the Privy Council, only three of the 12 independent Commonwealth countries joined the CCJ in its appellate jurisdiction. Those countries are: Barbados, Guyana and Belize.
Prime Minister Anthony has indicated that his government is not now far behind Dominica. Other governments in the sub-regional grouping, the Organisation of Eastern Caribbean States (OECS), have stated that as soon as they overcome a constitutional requirement for a referendum on the question, they too will do so. But, they have been tardy in moving. Referenda, it is feared, become entangled with political matters beyond the question put to the electorate. In the case of Jamaica and Trinidad and Tobago – two of the biggest countries in CARICOM – the debate over using the CCJ in its appellate jurisdiction for all criminal and civil matters has been reduced to immature and obtuse considerations such as the nationality of judges, and, sadly, even the need for ethnic balance.
These debates damage the Caribbean’s standing in the international community and they impede the process by which regional institutions could be embraced by the Caribbean people as symbols of their ideals and deliverers of their aspirations. The CCJ was always intended to be an independent judicial body served by the best judicial officers available from throughout the region. There was never any consideration that employment of the best judicial brains should be subject to national and ethnic considerations. Were such considerations to become part of the criteria for selecting the Judges of the CCJ, it is the Caribbean people that would be short-changed.
For decades, the people and governments of Caribbean countries have been colour-blind and unmindful of the nationalities of the judges of the Judicial Committee of the Privy Council – the majority of whom in the vast majority of cases are European and white. The only applicable standard is that they should be sufficiently learned and experienced to deliver justice. The same standard applies with the CCJ. It is the only requirement that should be needed of the officers of the Court.
In its original jurisdiction in matters arising under the CARICOM Treaty for all member states, up to January 2015 the CCJ had delivered 16 decisions. Except for those who were party to the cases in which the CCJ rendered its decisions, few persons were or are aware of the nature and content of those decisions. They have gone unquestioned and without controversy. The decision that did stir debate and interest was the one given in the celebrated ShaniqueMyrie case because it established Caribbean “Community law” by interpreting and applying the provisions of the CARICOM Treaty and decisions of its principal organ, the Heads of Government Conference. That is the very thing it is empowered to do.
In the words of Prime Minister Anthony, the CCJ “has widened and enlarged the bundle of rights of the Citizens of the Caribbean Community”. As Dominica joins as the 4th member of the court in its appellate jurisdiction and the CCJ marks its 10th anniversary, Caribbean citizens should celebrate its existence and its performance as a vital institution.
(Responses and previous commentaries: www.sirronaldsanders.com)
This sounds like everyone’s dancing the quick step and missing out the quick quick. To Quote: “as CARICOM countries come to grips with the issues pertaining to governance and the securing of a civil society everywhere it must be to local not an external court that we must look for the sensitive and courageous development of the law”.
On that note it is extremely difficult to recruit a legal firm in St Lucia from abroad, it is just as daunting to employ a legal practice from another Caribbean country to make legal representation in St Lucia. Does that mean if a legal case is fought and lost in St Lucia’s judicial there is no realistic form of appeal.
Dr Anthony hold several hats and some just do not appear to fit his head. From what I understand the governance of St Lucia is regulated by a written constitution, which may leaves it open to challenges particularly on issues relating to the ownership and land rights. The late Hilford de Terville was instrumental on constitutional matters as Attorney General in Dr Anthony’s Government, he was also his business Associate.
Which brings me to an important instrument of state, the separation of power, together with the rule of law and parliamentary sovereignty, should run like a thread throughout the constitution of St Lucia, it is a doctrine which is fundamental to the organisation of a state, in so far as it prescribes the appropriate allocation of power, and the limits of those to differing institutions.
As far as I can see the CCJ is a step in the right direction, I am shocked to learn that only three other states have joined with the view to combine the law in its appellate jurisdiction. The issue relating to ethnic balance is a cop-out each and every legal person should have a fiduciary duty to respect the rules which dictate equality before the law.
Well said Sir. For starters, the court is anchored in Trinidad and started off with a Trinidad Son-of-the Soil as skipper. Trinidad was very instrumental in the erection of a shrine yet it has never paid a visit to the said shrine which has been erected on its own soil.
From, what I have seen ( and many others also ), it appears that the Q.C’S and S.C’s will not be able to function without those initials. They have worked so hard for them. We need to create equivalent titles like Governor General’s Counsel ( G.C. ) and Peoples Counsel ( P.C. ). Let us hope that the members of the BARROCRACY ( Our learned freinds ) will embrace the idea. The UK-trained ones ( who used to look down upon the UWI-Trained ones ) will need lots of convincing.
It is quite evident that we are placing a financial burden Mr. & Mrs UK Taxpayer for the expert opinions of Lord O of Westminister, Lady Y of Cambridgde, Sir G et Al. Surely, they must be working behind the scenes to get rid of us.
The following words came from the lips of one of our own not too long ago:
” I have no doubt that those of you who have read the unfortunately far too few judgments
of the CCJ, and who read the judgments of the Judicial Committee of the Privy Council,
would conclude that only rank prejudice and unshakable belief in our own inferiority
could lead to the conclusion that in the law, in intellect, in independence and in
integrity, the indigenous is in any way inferior to the imported.” M.G.
I invite you dear reader to log onto the CCJ’s website and read the (brilliantly written) published opinions ( 6 ) in the case of AG v Jeffrey Joseph and Leonnox Ricard Boyce