Birdsong has lived in the Caribbean and enjoys travelling there. He also sometimes researches and writes on legal topics concerning the English Speaking Caribbean. The article I post herewith is about the formation of the Caribbean Court of Justice.
Birdsong is the first American to write about the CCJ and is very proud of the fact. The CCJ is a regional court for the Caribbean that will, among other things, serve as a type of “Supreme Court” or court of last resort for criminal matters. Until the formation of the CCJ Caribbean criminal defendants had to take their final appeals to the Privy Council in England. The Privy Council is the judicial wing of the British House of Lords. Birdsong believes the formation of the CCJ spells the end of British colonial rule in the Caribbean and a triumph for the people of color of the ESC who have fashioned the new court.
This article was originally appeared in the 2005 Winter/Spring edition of the University of Miami Inter-American Law Review.
The Formation of the Caribbean Court of Justice: The Sunset of British Colonial Rule in the English Speaking Caribbean
Leonard Birdsong © 2004
I. INTRODUCTION ………………………… 198
II. Historical Background ………………………………………………………………………. 201
III. The PROVISIONS AND STURTURE OF THE CCJ……………..………….205
IV. THE INFRASTRUCTURE IMPLENTATION PROCESS…………… 210
V. LEGAL AND PRACTICAL OBSTACLES IN THE FORMATION
OF THE CCJ……………………………….216
VI. CONCLUSION ……………………………………………………….……..226
For a period of almost three centuries, ending at the close of World War II, Great Britain ruled a vast colonial empire. During this period, it was said that the sun never set on the British Empire. Britain ruled colonies in the Near East, the Far East, India, Africa, Australia, New Zealand, and the Caribbean. Since World II, all but a few British colonies sought and won their independence. A number of the former colonies formed their own governments, implemented their own parliaments, and devised their own court systems. Many became Commonwealth countries, keeping strong ties to Britain. Despite their independence, however, most former colonies retained the English common law as their legal system.
As a part of this British legal tradition, most of the newly independent countries, as codified in their new constitutions, were required to rely upon the Judicial Commission of the Privy Council (“Privy Council”) as their final court of appeal. Although these countries implemented local court systems, they may have believed that their legal traditions were still too new to have produced judges with enough experience to sit on a court of final
9. The Judicial Committee of the Privy Council is often simply called tha Privy Council. The Privy Council is a part of ~he House of Lords in London, Eng]and, made up of senior judges who look at appeals from trials in lower courts and declde if any errors were made. The Privy Council has remained the final court of appeal far ESC countries. See Jamalcans for Justice, Brochure on the Privy Council and the Proposed Caribbean Court of Justice, available a$ http://www.jamalcansfo~ustlce.org/ Documants/ccj‑brodaure.doc (last visited Feb. 10, 2005).
2005] THE CARIBBEAN COURT OF JUSTICE 199
appellate jurisdiction. This is the case with the eleven countries of the English speaking Caribbean (ESC”), which retain the Privy Council in England as their final court of appeal.
When many people think of the ESC countries, or the West Indies, as the area is often called, all that comes to mind are exotic vacations on golden, sun-splashed beaches filled with days and nights of rum drinking and limbo dancing under the stars to the sound of steel bands playing calypso music. Much of the world seldom recognizes that the countries of the ESC are also independent, sovereign island nations. The majority of the population of these nations is comprised of citizens who descended from ancestors brought from Africa as slaves to work on the sugar cane plantations, and later, others who had been brought from India and China as indentured servants or contract laborers
The population of the ESC is approximately 6 million people. The vast majority are people of color. They are people who have respect and honor for the rule of law, and have been dogged in seeking independence and their own self-determination from their former colonial ruler. Thus, when one thinks of the ESC, or the West Indies, one should recognize that there is a substantial population of people of color who have built institutions to further peaceful democracies and contLuue the rule of law. Like many other former British colonies, ESC nations have built and fostered their own governments and parliaments, and have implemented their own local court systems.
In 2001, a number of these countries signed an Agreement Establishing the Caribbean Court of Justice (“Agreement”).
This court will have a dual function. The Caribbean Court of Justice (“CCJ”) is envisioned as a final court of appeal for the ESC that will replace the Privy Council as the court of final appellate jurisdiction for the decision of crhninal and civil matters. It will also function as a new international court for the region, designed as a court of original jurisdiction to settle disputes of ESC countries under the Caribbean Community (“Caricom”) Treaty. The hybrid nature of the CCJ, with its exercise of both original and appellate jurisdiction, is part of a vision of those who hope to ensure autonomy of judicial determinations in the ESC as a means of strengthening regional integration in a postcolouial world. The implementation of the CCJ, the formation of a regional, “super national” court by the ESC, should be viewed as a historic legal accomplishment of which the world should be aware. The formation of the CCJ is one of the final steps in the self-determination of people of color in the ESC whose ancestors were once oppressed.
For a number of years, citizens and politicians of the ESC suggested that the ESC form their own supreme court and de-link themselves from the Privy Council. This is about to happen. The Agreement to Establish the Caribbean Court of Justice has. been formulated and ratified by the requisite number of ESC members. The ratification of the Agreement, and the soon expected inauguration of the CCJ, are important to many in the ESC because it signals the end of the final vestiges of co]ouialism in the ESC. It appears that with the implementation of the CCJ the sun will finally set on British colonial rule in the ESC.
21. This author has, for a number of years, followed and written about legal issues in the ESC, especially those concerning the death penalty debate. The need for the CCJ often was mentioned with respect to the death penalty debate in the ESC. Upon learning of tl~e ratification of the CCJ Agreement, he decided to travel to the natio~ of Trinidad and Tobago, the site of the CCJ, to speak with government officials there to learn more about the court and to determine the progress of the formation of this new court.
2005] THE CARIBBEAN COURT OF JUSTICE 201
The purpose of this article is to introduce the Agreement formulated by people of the ESC, which establishes the Caribbean Court of Justice. In so doing, it is the author’s intention that students, lawyers, judges, scholars, and those interested in international courts and international law may better understand the court’s intended functions and proposed workSugs. The article will also examine some of the practical, political and legal obstacles in forming a new “super national” court system.
A. The ESC and the Development of the Caricom
Single Market and Economy CCSME”)
ESC countries began to gain their independence from Great Britain in 1962. The idea for the establishment era court of last resort for the Caribbean was first seriously mooted, it is said, at a Caricom Heads of Government meeting in Kingston, Jamaica[,] in 1970.” A few years later a number of the heads of governments of ESC countries met at Chaguaramas, Trinidad, and agreed to establish their own common market system. The agreement, signed on July 4, 1973, by those heads of government, was named the Treaty Establishing the Caribbean Commurfity (“Treaty ef Caguaramas”), known today as Caricom.
Starting in 1997, with an eye toward strengthening a regional agreement that would allow for competition with other world trading blocks in a growing global trade market, heads of government of ESC countudes met to negotiate a better system, These negoti-
. This article followed. As part of the research for this article, the author traveled to Port of Spain, Trinidad, in June 2004, to see the temporary headquarters of the CCJ and to speak with Ministry of Legal Affairs officials and local court magistrates involved in the implementation and formation of the new court.
22. Jamaica and Trinidad and Tobago gained independence from Britain in 1962; Barbados and Guyana gained independence in 1966; the Bahamas gained independence in 1973; Grenada 1974; Dominica 1978; St. Vincent and the Grenadinee and St.. Lucia in 1979; Antigua and Barbuda in 1981; St. Kitts and Nevis 1i983. Central Intelligence Agency, CIA The World Fact Book, available a~ odcl.gov/cia/publlcationsffactbosk/index.html (inst visited Feb. 28,
ations culminated in July 2001, in Nassau, Bahamas, where the heads of government signed the Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the Caricom Single Market and Economy (“Revised Treaty” or “Revised Treaty of Chaguaramas”). “The notion of a Caribbean region without barriers, strengthened by its collective resources and opportunities, has been a shared vision that inspired the commitment of regional integrationists from the early days.“
With the Revised Treaty the heads of government signatories recognized that “globalisation and liberalisation have important implications for international competitiveness[.]” Thus, they committed, through the Revised Treaty, to strive to deepen “regional economic integration through the establishment of the CARICOM Single Market and Economy (“CSME”) in order to achieve sustained economic development based on international competitiveness, co-ordinated economic and foreign policies, functional co-operation and enhanced trade and economic relations with third States[.]“
The CCJ is intended to provide a solid judicial foundation for the success of the CSME by protecting and enforcing a range of rights. The CCJ is “also… expected to enforce obligations associated with such rights.” Further, this will serve to strengthen the process of regional integration with respect to trade, the movement of capital, persons, and provision of services. Under the CSME restrictions that are placed upon goods, the movement of capital, and provision of services will have to pass the test of being in accordance with the law of the Revised Treaty. It is believed
2005] THE CARIBBEAN COURT OF JUSTICE 203
with the “removal of barriers to trade in the ESC], with free movement of regional services, goods and capital, and people[,] It]he establishment of the Caribbean Court of Justice (“CCJ”) w[ill] ensure CSME integ~ty and assume custody of the rights of participating states a~d their nationals.“
B. The ESC and the Death Penalty Debate
Throughout the same years that the CSME and the formation of the CCJ were being debated and developed, crime rates rose in a number of the ESC countries. As a result of the rising crime rate there has been, for the last few years in the ESC, an ongoing debate concerning the use of the death penalty in the ESC. The common law penalty of death-by-hanging is still the established penalty for capital murder throughout the ESC. Many people in the region favor the death penalty. Others wish to see it abolished. In fact, a nmnber of ESC death penalty sentences have been overturned by judicial opinions and decisions from the Privy Council. Some believe that the Privy Com~cil rulings have hampered the rightful imposition of the death penalty in the ESC.
A number of detractors of the new court fear that the CCJ will: become a “hanging court.” As a result of the Privy Council’s 1993 decision of Pratt and Morgan it is believed to be more difficult for ESC countries to apply the death penalty. Detractors believe that the appellate jurisdiction of the CCJ will allow ESC countries easier recourse to implement the death penalty. Those who wish to see the abolition of the use of the death penalty in the ESC see the formation of the CCJ and the de-linking from the Privy Council in appellate matters as a dangerous assault on human rights. Debate in the E$C concerning the implementation of the CCJ is often linked to the death penalty debate.
The Caricom Secretariat maintains the position that a renewed interest in the CCA and the Pratt and Morgan decision are just an unfortunate coincidence. Caricom maintains further that revived interest in the CCJ had its origin in the 1992 Report of the West Indian Commission, which predated the landmark decision of Pratt and Morgan by one year.
At the time of the signing of the Revised Treaty of Chaguaramas by the ESC heads of governments, ministers of justice from the ESC had already begun drafting the Agreement Establishing the Caribbean Court of Justice. The Agreement was signed on February 14, 2001, by the respective contracting parties, The Agreement was subsequently ratified and entered
A. Part I
into force on July 23, 2003.
The Agreement came into force when Guyana deposited its instrument of ratification on that day following earlier deposit of instruments by St. Lucia and Barbados. Pursuant to Article xxv of the Agreement, the Agreement would “enter into force upon the deposit of Instruments of Ratification or Accession… by at least tkree member States of the Caribbean Community. The agreement was declared in force by the depositary, Dr. Edwin Carrington, at the seat of the new court in Port of Spain, Trinidad.
III. The Provisions and Structure of The Caribbean Court of Justice
The CCJ has been set up through a number of Lustruments, chief of which is the Agreement to Establish the CCJ. The Agreement contains several main provisions that set out the structure and responsibilities of the court and its judges. The Agreement is an eighteen-page document, set out in four parts, consisting of thirty-nine articles, with two short appendices.
Part I of the Agreement establishes the court with:
Original and Appellate Jurisdiction.
It further establishes:
• The seat of the court, which will be located in Trinidad and Tobago. However, the court may sit in the territory of any other contracting party as circumstances warrant. In essence, it appears that the judges may “ride
circuit” if they so choose.
The constitution of the court. There will be a president of the court “and not more than nine other judges of whom at least three shall possess expertise in international law including international trade law.“
The Regional Judicial and Legal Services Commission. This provision sets out the composition of the commission and sets out its responsibility for appointment and discipline of judges of the court, except the president.
Tenure of judges’ office. The president of the court shall se~re a seven year term er until he attains the age of seventy-two years, whichever is earlier.69 The other judges of the court shall hold office until the age of seventy-two. “A judge may be removed from office only for huability to perform the functions of office, whether arising from illness or any other cause or for mis-behaviour …. “
Oath of Office.72
Part II of the Agreement relates to the original jurisdiction of the court and provides, in pertinent part:
• International law is the law to be applied by the court in the exercise of its original jurisdiction.
• Directs that the court have jurisdiction to hear and deliver judgments on disputes between contracting parties to the Agreement; disputes between contract’mg parties to the Agreement and Carlcom; referrals from national courfis or tribunals of contracting parties to the Agreement; and applications by nationals of Caricom
68. Id. app. 1, art. IV(I), at 260.
66. Id. app. 1, art. V, at 262.
67. See id. app. 1, art. V(1)-(3), at 262-64.
68. Id. app. 1, art. IX, at 266.
69. See id. app. 1, art. IX(2), at 266-67. 70. See id. app. I, ar~. IX(S), at 267. 71. ld. app. 1, art. IX(4), at 267.
72. Id. app. 1, at 284. Appendix I of the Agreement Establishing the Caribbean Covx~ of Justice provides the oath as fo~lows:
I ‑‑ do hereby swear (or solemnly affirm) that I will faithfully exorcise the office of President/Judge of the Caribbean Court of Justice without fear or favour, affection or i]lwfll and in accordemce with the Code of Judicial conduct. (So help me God (to be omitted in affirmation)). 73. Id. app. 1, pt. II, at 269-74.
74. See id. app.1, art. XVII(1), at 271.
THE CARIBBEAN COURT OF JUSTICE
concerning the interpretation and application of the Caricom Treaty.
• Allows intervention by third parties. A member state, Carlcom, or a person who considers that he may have “a substantial interest of a legal nature which may be affected by a decision of the court in the exercise of original jurisdiction.., may apply to the court to intervene and it shall be for the court to decide on the application.
• Locus standi of private parties. This provision allows nationals of contracting parties to pursue claims against a nat~on state,s° This is unique, in that international law, as a general rule, only recogalzes states as subjects. This provision allows an individual the opportunity to apply to the CCJ for special leave, under certain conditions, to espouse his action against a nation state, when the court finds the interest of justice so requires,ss
• Compliance with judgments of the court and compulsory jurisdiction of the court.
• Allows the court to render advisory opinions.
• Judgments of the court will constitute stare decisis.
• Allows for revision of judgments. This provision allows the court to reconsider a judgment “when it is based upon the discovery of some fact of such nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and party claim-
75. See id. app. 1, art. Y/I, at 269-70. 76. See id. app. 1, art X-qIII, at 271. 77. Id. app. ~, art. XVI~(1), at 271. 78~ See id. app. 1, ~t. ~, at 274:
79. Nations of ~h~ ESO who si~ the A~eement ~ Estab~sh ~he CCJ con~act~g
80. See POL~, 8~pra note 15, app. i, art. ~r~ at 274.
Court of J~ic~ 2 ~ack~d papar prep~d ~d sub~tted by ~e
Secret~ia%), available a$
s~ (~t ~sited Feb. ~,
88. See id. app. i, ~t. ~, at 270. 8~. See id .app, I~ ~t. ~, at 271. 8~. See id. app. i, art. ~ a~ 270.
86. See ii app. I, ~t. ~I, at 278. ~t~4e ~I provides t~t jud~en%s of the ~t sh~ he legally b~ng precedents for p~ies ~ proceedings before %he ~ess Su~ jud~en~s have been reused ~ accor~ce ~h ~ic]e ~. ~s is a co–on law concept not usury applied ~ ~temat~cn~ law. See C~COM Secret~iat, Model Car~com Youth Summit: The Caribbean Court of Just~e, sugra note 81, at 2.
87. Seeid. app.
Encourages alternative dispute resolution measures,
C. Part III
Part III of the Agreement addresses tile appellate jurisdiction of the court and provides, in relevant part:
The CCJ, “in exercise of its appellate jurisdiction…, is a Superior Court of record with such jurisdiction and powers conferred on it by th[e] Agreement or by the Constitution or any other law of a Contracting Party.
• Appeals shall lie to the court from decisions of the court of appeal of a contracting party as a matter of right in certain cases. This provision of the Agreement tracks exactly the language of most ESC constitutions which now allow appeal as a matter of right to the Privy Council23
• An appeal shall lie to the Court with ~he leave of the
89. See id. app. 1, art. XXIII(1), at 274. Article XXIII(1)provides that’~'[e]ach contracting party shall, to the m~mum extent posslble, encovrage and facilitate the use of arbitration and other meatus of alternative dispute resolution for the settlement
of international connnercial disputes.” Id. 90. Id. app. 1, pt. III, at 275-77. 91. Id. app. 1, ~rt. XXV(1), at 275.
92. See id. app.1, art. XXV(2), at 275. Article ~CIV(2) provides appeals shs]l lie as a matter of right in final decisions: in civil matters where the value is of not less than $25,000 Eastern Caribbean Currency (EC $25,000); in proceedings for dissohitian of marriage; in any civil or other proceedings which involve interpretation of the constitution of a contracting party; rela~ing to redress for contravention of the previsions of the constitution of a contracting party for the protection of fundamental rights; given in the exarcise of a contracting party of a right expressly provided by that party’s constitution; and any such other cases as may be prescribe by any law of a contracting party. See id.
93. See, e.g., T~. & TOBASO CONST. ch~7, pt.2, § 109(1.). The Constitution of the Republic of Trln~dad and Tobago provides:
An appsal shall lie from decisions of the Oourt of Appeal to the Judicial Committee as of right in the foIlowing cases(a) final decisions in civil proceedings where the matter in dispute on the appeal . . . is ef the value of fu~een hundred dollars or upwards or where the appeal involves directly or indirectly property a claim to or question respecting property or a right of the value of fifteen htmdred dollars or upwards;
(b) ~nal decisions in proceedings for dissointien or nullity of marriage;
(c) finsJ derisions in any clvi~, criminal or ether proceedings which involve a question as to the interpretation of thls Constltution: and,
(D such other cases as may be prescribed.
D. Part I
THE CARIBBEAN COURT OF JUSTICE 209
Court of Appeal of a contracting party in other certain cases. This provision of the Agreement, also, tracks exactly the language of most ESC constitutions wlfich now allow appeal with the leave of the Court of Appeal to the Privy Council.
The President in consultation with five other judges selected by him makes Rules of Court regulating the practice and procedure of the cour~ in exercise of its appellate jurisdiction.
Part IV of the Agreement relates to the enforcement and financial provisions of the court and provides, in relevant part:
• Every state that is a signatory to the Agreement must pay its proportionate share of expenses of the CCJ.
• Salaries, allowances, benefits, and expenses of judges shall be determined and shall not be altered during their tenure of office
• “The contracting parties agree to take all necessary steps, inchidLug enactment of legislation to ensure that” the exercise of jurisdiction shall be enforced.
• “There shall be a Registrar of the Court, Deputy Registrars and other officials and employees of the Court…
• Right of audience of attorneys to practice before the
94. See PoL~u~n, s~zpra no~e 15, app. 1, art. :KXV(3), at 276. Article XXV(3) provides for such appe~s ~m fin~ decision~ ~ ~y ci~ procee~g ff ~e question ~volvad is one of ~eafi gene~ public impotence; ~d such other cases as may be proscribed by ~Y law of the ~ntract~g p~ty. S~e ~.
95. See, e.g., ~’. & TomAto CONSW. ch.7, pt.2, ~ 109(2). ~ne Const~ti~n of ~e ~pub~c of ~dad ~d Tobago provides:
~ appeM sh~l He ~om decisions of ths Co~t of Appeal to the Ju~c~ Comm~ee ~ the leave of the Co~ o~ Appeal ~ the foHo~g cases(a) decisions ~ ~ c£~ procee~gs; where ~ %he op~o~ of the Co~C of Appe~ the ques~on involved ~ ~e appe~ is one ~hat, by reason ofits ~eat gener~ or public ~po~ce or o~e~se~ ought to be subdued ~o the Ju~d~ Com~t~ee; ~d (b) such other cas~s as may be prescribed.
Privileges and immunities for judges.
“Th[e] Agreement may be amended by the Contracting Parties . . . subject to ratification by the Contracting Parties in accordance with their respective constitutional procedures.“~
“A contracting party may withdraw from th[e] Agreement by giving three years’ notice in writing …. However, “a Contracting Party that withdraws from th[e] Agreement undertakes to honour any financial or other obligation duly assumed…, includ[ing] any matter relating to an appeal filed before withdrawal becomes effective.
IV. The Infrastructure Implementation Process of the CCJ
The Agreement Establishing the CCJ has been ratified by the requisite number of countries and the Agreement now has entered into force.
Adequate funding has been the foundation of the CCJ implementation process. Article XXVIII(1) of the Agreement mandates that every state that is a signatory to the Agreement pay its proportionate share of expenses to the CCJ. According to infor-
102. Sse id. app. 1, ar~. XX]X, at 280. Article XXIX provides that attorneys ~duiy admitted to ]~ractlce law in the courts of a Coatractlng Party shaH, subject to the powers of the Court, aot be required to satisfy any other condition in order to practice be/ore the Court wherever the Court is slt~ug in exercise of its ~urisdictlan mud they shall e~joy the privileges and immunities ~ecessary for the independent exercise of their duties.” Id.
108. See id. app. 1, arh XXX, a~ 280. Article X~ provides ~ha~, “it]he privileges and immunities to be recognised and granted by the Contracting Parties to the Judges and officers of the Court necessary to protect their independence and
impartiality shall be lald down in a Protocol to flds Agreement.” Id. 104. Id. app. 1, art XXXII(1)-(2), at 281. 105. Id. app. 1, ar~, X:C4VII(1), at 282. ~06. Id. xpp.1, art. XXXVII(2), at 282. 107. See id. at 258-355.
108. See id. app.1, art XXKV, at 281. Article XXXV provides that, “at least three
Member Shares of the Caribbemu Community” must raf2fy the Agreement.
109. Id. app.1, art. XXVIII(1), at 279-80.
110. ~es id. Article XXVIII provides, in reIevant part:
The expenses of the Com~ and of the Commission, including tbe cost of the maintenance of the Seat of the Comet and the rem~.ueration and alIowmuces and other payments referred to in Article 2XVH and ~hls Article, shall be borne by the Contracting
mation provided by officials, Caricom Ministers of Finance from signatory states are required to make provisions in their national budgets for the first five years of the court. In this regard, a one hundred million dollar (U.S. $100 million) trust fund has been established for the purpose of sustaining the operations of the court,~ and will be administered by the Caribbean Development Bank, located in Barbados. Contracting parties are required to put np a bond in the amount of their assessed contribution for the first five years. Failure to pay future contribntions wbuld lead to forfeiture of the bond.
Officials confirm that the trust fund is up and running, a president has been elected, and a board of directors selected. Each contracting party makes a one time contribution to the fund. Trinidad, the largest contributor to the fund, contributed one hundred and ninety-nine million (TT 199 million) to the fund. Trinidad has also provided the temporary headquarters of the court in its capital city of Port of Spain and will bear the cost of its operation. Jamaica has contributed twenty-eight million, seven hundred thousand dollars (U.S. $28.7 miIlion) to the fund. It is reported that Guyana will contribute between forty-seven and forty-eight rnillion dollars (U.S. $47-8 million) to the fund. Other smaller ESC countries have contributed muounts of approximately two million, five hundred thousand dollars (U.S. $2.5 million), It has also been reported that Japan’s Human Resource Development Fund has provided three hundred thousand dollars (U.S. $300 thousand) to help implement the operation of the CCJ}se The Japanese contribution will be funneled through the United Nations Development Program (“UNDP)
The board of directors of the trust have set about directing the operations of the fund, establishing guidelines of investment, promulgating regulations for the trust, appointing investment managers, appointing an auditor, and approving an annual fund budget3 The board will meet twice each yearl and each member state has one vote. A simple majority is required to constitute a quorum.~
B. The Commission and Its Role in Choosing Judges
In its exercise of appellate jurisdiction, the CCJ will consider and determine appeals in both civil and criminal matthrs that had once been adjudicated by the Privy Comlci[ In its exercise 0f original jurisdiction, the CCJ will function as an international tribunal applying the rules of international law. As such, the CCJ is expected to perform functions like other international tribunals, including the European Court of Justice, the European Court of First Instance, the Andean Court of Justice, and the International Cour~ of Justice. The judges of these international tribunals are typically elected by the signatory countries con~prising those courts, or appointed by those countries’ ministers of government.
2005] THE CARIBBEAN COURT OF JUSTICE 213
Framers of the Agreement to Establish’ the CCJ determined that be judges of the CCJ should not be directly appointed or elected by its member states. Instead, the CCJ Agreement provides for a regional judicial and legal services commission that will choose the judges for the Court. Such a mdthod serves to negate the perception of undue political influence in selecting the judges to the CCJ.
Article V of the Agreement Establishing the CCJ provides for the establiskment of the Regional Judicial and Legal Services Commission. The Commission consists of a’president, who shall be its chairman; two persons nominated jointly by the Connnon-wealth Bar Association and the Eastern Caribbean Bar Association; one chairman of the Judicial Services Commission of a contracting party; the chairman of a public service commission of a contracting party; two persons from civil society following consultation with regional nongovernmental organizations; two distinguished jurists nominated by law school deans; and two persons nominated jointly by the bar associations of the contracting parties.
The responsibilities of the Commission include: recommendation of appointment of the president of the court; appointment of other judges; appointment of the registrar, and other officials and employees of the court; determining salaries of judges and other employees of the court; and providing rules for termination of appointments to the Court. The President of the Commission is Sir David Simmons, the Chief Justice of the Barbados Supreme Court. He maintains that the Commission is hard at work. The Commission has made its recommendations to the heads of governments for the president of the court pursuant to Article IV(6). The heads of government are to decide their choice for president of the court at their annual Heads of Government Meeting to be held July 4-7, 2004. He also maintains that there has been extensive advertising for the position of judges for the Court. Information has been sent to bar associations throughout the ESC and the British Cormmonwealth. The judicial positions have also been advertised on the internet.
Sir David contends that it has taken the Commission some time to recommend the president of the court. He believes that the appointments of the other judges will move much faster once the president is chosen. He further states that the Commission is looking for broad experience. Sir David maintains that the CCJ must have judges or lawyers with experience who can significantly shape the law. He expects some of the appointees will already be judges, but the Commission is not limited to choosing sitting judges. Sir David has been pleased with the response to the Commission’s advertising and recruiting efforts. He explained that the Commission has already received ninety applications for consideration from all over the ESC, including England, South Africa, and other Commonwealth countries such as, Australia, Nigeria, and the Solomon Islands. Sir David further indicated that although judges of the CCJ, other than the president, may remain on the bench until age seventy two, he did not see this as a problem. The Commission is looking for people with at least fif-
2005] THE CARIBBEAN COURT OF JUSTICE 215
teen years of legal and/or judicial experience. He doubted that anyone under the age of forty-five would be appointed to the court.
Sir David would not speculate on the exact inaugural date of the court but he does not expect that the judges will hear cases that first day the CCJ opens for business. Instead, he reminds us, that pursuant to Article XXI of the Agreement, the court will spend its first days promulgating rules of the court which will regulate the sittings of the court, regulate the pleadings practice and procedure, and regulate the practice in the court by attorneys.
C. The Inauguration of the Court
There has not been a specific date set for inauguration of the court. It is likely the CCJ wilt be inaugurated in late winter or early spring of 2005. Officials involved with the formation process and implementation of the CCJ contend that the heads of governments of the various signatory countries to the Agreement had originally set November 15, 2003, for the inauguration of the court. This appears to have been an arbitrary date which did not fully take into account all the logistics of the implementation process. Those planning the inauguration have come to realize that the support staff and the financial section of the CCJ need to be fully operational before a formal date is announced. Officials believe that early in 2005, the implementation process will be complete. Inaugural ceremonies will entail invitation of heads of government of the signatory countries, as well as Caricom.
V. LEGAL AND PRACTICAL OBSTACLES IN THE FORNIATION
OF THE CARIBBEAN COURT OF JUSTICE
The anticipated inauguration of the CCJ will be a monumental and historic event for the ESC. Yet, there still remain practical, legal, and political obstacles to the full operation of the CCJ.
A. If You Build It Will They Come?
Since it appears that a ftmctioning CCJ will soon be a reality, the question becomes: “If you build it, will they come?” Stated another way: ‘”Will the Court be utilized?” There appears to be considerable public support for the CCJ among many in the ESC. “According to the Caricom Secretariat, public support for the CCJ has grown from sixty eight percent in the year 2000 to some eighty percent by the end of last year (2002).“
1. Original Jurisdiction: The Caribbean Court of Justice
and the Economy of the Region
The author believes that the CCJ wflI certainly exercise its original jurisdiction and can be successful as an international court. The Honorable Godfrey Smith, Attorney Genera] of Belize expressed it best when he stated:
One of the strongest arguments in favor of the CCJ is perhaps the one least focused on, i.e., that the CCJ is a sine qua non for the success of the Caricom Single Market and Economy. The increasing globalization of the world economy due to the development of the WTO, the consequent emergence of regional trad’mg blocks all over the world and the erosion of preferential treatment present major chalb lenges to the viability and sustainability of individual Car-icom nations. Indeed Prime Minister Owen Arthur of Barbados has highlighted the importance of the CSME to the very economic survival of the Caribbean region as a whole.
The Agreement, at Article IV, specifically mandates that, “[t]he Judges of the Court shall be the President and not more than nine other Judges of whom at least three shall possess exper-
157. Confidence Growing in Caribbean Court, GUYANA CHRON., Mar. 20, 2003. 158. Smith, supra note 23.
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tise in international law including international trade law.” Though the court should start with at least three judges with international experience, there will probably be a learning curve with respect to their activities on a newly inaugurated court. It would be advisable that all, or at least a good number, of the judges visit the European Court or the Andean Court to view their work and consult with the judges of those courts to obtahl a feel for international jurisprudence.
2. Regional Appellate Jurisdiction
The answer to “If you build it will they come?” with respect to the exercise of the court’s appellate jurisdiction is more problematic at this time. The Privy Council has often been utilized in final appeals since the independence of the ESC. It is reported that from 1962 to 1999, one hundred and five criminal cases were taken to the’Privy Council – an average of under three per year. During the same period, 1962 to 1999, fifty-seven civil cases were taken to the Privy Council, an average of fewer than two per year.. It has been further reported that in 1998, forty-five cases went to the Privy Council from the ESC. This would indicate that there is a need for a final court of appeal for the ESC. It is believed that such final court of appeal Ln the region will be less costly for litigants than appealing to the far aw.ay Privy Council in London.
Suriname and Haiti, both of which have signed the Agreement, never had the availability of the Privy Council written into their constitutions. These countries’ use of the CCJ’s appellate jurisdiction will not be an issue. For example, Guyana already has its own final court of appeal and de-linked from the Privy Council some time ago, and is anxious to utilize the appellate jurisdiction of the CCJ. However, the decision to leave the Privy Council has met with some criticism from opposition politicis‑ns across the region. The criticism appears to center around tradition and cost, and ultimately has become a political and constitutional problem for some countries.
In order to avail themselves of the CCJ’s appellate jurisdiction, most of the ESC signatory countries will find it necessary to amend their constitutions to de-link themselves from the Privy Council. An example is Trinidad and Tobago. As is found in most ESC constitutions, there is an express right granted to Trinidad to appeal to the Privy Council as the court of last resort. The Trinidad constitution specifically provides that it may be altered by the country’s parliament on a vote of three-fourths of all members of the House, and a vote of no less than two-thirds of the members of the Senate.
Therein lies the problem: a “super majority” is required to amend the constitution with respect to the Privy Council. This means the governing party of Trinidad, the Peoples National Movement (“PNM”), must work with the opposition party, the United National Congress (‘ffJNM”), to pass the legislation. The UNM’s present position is to withhold support for the constitutional amendment to de-link from the Privy Council unless other constitutional reforms they desire are passed. Trinidad’s Prime Minister Patrick Manning has asked other Caricom nations to help convince the UNM to alter their position. The UNM’s pos
In a poll commissioned by The Gleaner, a Jamaican newspaper, it is further reported, “that even though most Jamaicans were in favour of the CCJ, a clear majority thought the Government should hold a referendum. Some 63 per cent of those interviewed are in favour of a referendum on the Court, while 34.5 per cent are Opposed to it.” The Patterson administration had not moved to ~tse the party’s majority to force a vote on the constitutional change. Although a referendum is not constitutionally required in Jamaica, it appears that the PNP is weighing the mood of the people before acting on the amendment. These constitutional and political problems in Trinidad and Jamaica may soon be resolved through typical political compromise and negotiation. Yet, until they are resolved, it is not clear if or when the CCJ’s provisions for appellate jurisdiction will be Utilized ition remained unchanged. This constitutional and political stalemate leaves Trinidad, the temporary headquarters of the CCJ, unable to immediately avail itself of the CCJ’s appellate jurisdiction.
There is a similar constitutional and political problem with respect to Jamaica. The Jamaican Constitution also provides that
it might be amended to de-link from the Privy Council. However, unlike Trinidad’s Constitution the Jamaican Constitution onIy requires a simple majority vote of both houses. It is reported hhat Jamaican Prime Minister P.J. Patterson’s governing party, the People’s National Party (“PNP”), believes that they should use their recent election victory to amend the constitution to de-link from the Privy Council. “However, the opposition Jamaica Labour Party (“JLP”), along with the Jamaican Bar Association have been demanding that the Patterson Administration hold a referendum to give the people the opportunity to decide whether they want to swap the Privy Council with the CCJ, as the country’s final appeal court.” It is further reported that Jamaican “Opposition Leader, Edward Seaga (JLP), has repeatedly stated that future JLP Government would pull out of the CCJ flit were not given the stamp of approval by the people.“ by two of the most populous countries in the ESC.
The constitutional problems may, however, be resolved another way. It has been reported that British Prime Minster
Tony Blair has announced his intention to overhaul the British court system and do away with the Privy Council. ESC officials view this as a timely signal to the region to put its own house in order with respect to the appellate jurisdiction of the CCJ. “Barbados’ Attorney General, Mia Mottley, who is chairperson of the CCJ preparatory committee, said Blair’s proposals raises the question of whether the region should go ahead and establish its own final court or ‘wait and loiter on colonial premises.”
There is also strong support from the Privy Council itself for the formation of the CCJ. Upon returning from a London conference on de-linking from the Privy Council, Sir David Simmons, Chief Justice of the Barbados Supreme Court, and President of the Regional Judicial and Legal Services Commission of the CCJ, stated: “The Privy Council and the House of Lords judges fully understand the necessity for the CCJ, fully support what we’re doing and pledged their continued support for the court.” Sir David added that, “the registrar of the Privy Council has also made it clear that the judicial body, which is csrrently the court of last resorts for most English-speaking Caribbean countries, is prepared to do ‘whatever is necessary to ensure that we set up the CCJ not only according to best practices but to ensure sustainability.” In this same regard, a few years earlier, the Senior Law Lord and Head of the Privy Council, Lord Nicolas Browne-Wilkinson, expressed the sentiment that the Privy Com~cil was over burdened with Caribbean cases and maintained that the region should have its ovcm court.
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There has been no announced date as to when the British court system might be overhauled and the Privy Council abolished, but it appears that there would be no need for constitutional amendments in the ESC if the Privy Council were abolished. If the Privy Council is abolished the ESC countries will be left with no recourse to a final court of appeal other than through the appellate jurisdiction of the CCJ.
B. Coordinating Three Legal Systems
There are another set of obstacles which relate to the coordination of legal systems, irrespective of whether the CCJ is acting with original or appellate jurisdiction. In the European Court of Justice, there is .a problem with signatory countries speaking and writing different langUages. Therefore, the European Court utilizes simu/taneous translations in its proceedings and prints its decisions in different languages.
The CCJ, however, grows out of a common law tradition, and will utilize international law. Therefore, the CCJ also find it necessary to coerdinate and mesh three languages and two different legal systems. Most of the signatories to the Agreement are English speaking – hence the English Speaking Caribbean. However, Suriname, a signatory, was a Dutch colony and Dutch is the official language. They have a civil law tradition. Haiti has also signed on to the CCJ, and they are a French speaking country with a civil law court system patterned after the Napoleonic Code. Guyana, although an English speaking country, reportedly has a Roman law tradition.
These legal systems will not necessarily make a great difference with respect to original jurisdiction; international law will apply. Although it will be costly, the language difference can be solved by simultaneous translations, as is done in the European Court, and the decisions may be printed in three sets of languages. However, if Suriname, Haiti, and Guyana decide to avail themselves of the appellate jurisdiction of the CCJ, this may present the interesting problem of meshing different legal systems.
The appellate jurisdiction of the CCJ is based upon a British common law model which is based on the concept of stare decisis. Stare decisis requires that the previous judgments of a court become ]egally binding precedent for all similar cases and proceedings that come before the court. The civil law systems do not follow this model. Nevertheless, with respect to appellate jurisdiction, the judges of the CCJ will be expected to follow the laws and constitutions of the signatory countries. It appears that many of the new judges who come from the ESC will require a crash course in civil law systems. Of course, the problem can be alleviated if a number of judges are appointed to the CCJ who already come from such civil law systems in Suriname, Haiti, and Guyana. It will be interesting to see how these systems will be meshed. Of course, perhaps Suriname, Haiti, and Guyana may decide only to utilize the CCJ for Caricom Treaty matters and forego the appellate jurisdiction of the court. Once the judges are named to the CCJ, it
would be advisable that a working group be formed among them to decide how the legal systems may be coordinated
C. Enforcement and Withdrawal
Enforcement of judgments of an international court can always be problematic. The CCJ will likely be no different. Usually, there is no true enforcement provision in a treaty with respect to sovereign states. It also appears such with the CCJ. With respect to the original jurisdiction of the CCJ, Article XV of the Agreement speaks to compliance of judgments of the court. The Article provides! “Member States, Organs, Bodies of the Community or persons to whom a judgment of the Court applies, shall comply with that judgment.” This seems to have little teeth, and provides little comfort to an aggrieved party where a defaulting state refuses to enforce a decision of the CCJ. Yet, the signatories to the Agreement have a tradition and culture of respecting the law. The fact that fourteen states have signed on to the Agreement to Establish the CCJ creates hope that there will be lawful compliance with and obedience to the decisions of the new tribunal.
The prospect for enforcement with respect to the appellate jurisdiction of the CCJ is stronger, since the Agreement requires the states to enact legislation to ensure that judgments shall be enfOrced. Article XXVI provides:
The Contracting Parties agree to take all the necessary steps, including the enactment of legislation to ensure that:
(a) all authorities of a Contacting par~y act in aid of the Court and that any judgment, decree, order or sentence of the Court given in exercise of its jurisdiction shall be enforced by all courts and authorities in any territory of the Contracting Parties as flit were a judgment, decree, order or sentence of a superior court of the Contracting Party …. ~s Hopefully, such legislation will be passed in the signatory countries without undue delay.
The Agreement Establishing the CCJ has a withdrawal provision, as do many international agreements. Theoretically, such a provision signals that the CCJ may be impermanent. That is, a number of countries, after a year or two, might decide to withdraw from the CCJ. This is doubtful if the signatory countries are as committed to the success of the CCJ as their funding and infrastructure building processes have shown. Again, under interna-tionai law, states, as an attribute of their sovereignty, may choose to withdraw from a treaty or international agreement. The fact that there is a withdrawal provision should be of no significance to the court since withdrawal could not take effect until five years after a signatory state has given written notice.
D. The Death Penalty Debate
A number of detractors of the CCJ fear that its exercise of appellate jurisdiction will make it easier for ESC countries to put people to death once the moderating influence of the Privy Council is no longer available. The truth or fallacy of this belief will become clear with time. At present the countries with the largest death row populations in the ESC are Jamaica and Trinidad, and there are pohtical and constitutional questions surrounding when and whether they will be able to avail themselves of the ability to de-link from the Privy Council.
Nevertheless, when those two countries resolve their constitutional problems and the others nations who have no such problems avail themselves of the appellate jurisdiction of the CCJ in death penalty cases, it is unlikely that it will be easier to put people to death. It is this author’s belief that even if the Privy Council no longer exists, the concept of stare decisis will moderate a rush to the death penalty. The concept of stare decisis is written
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into the Agreement to Establish the CCJ. Moreover, the CCJ, in its exercise of appellate jurisdiction, must interpret and apply the constitutions and other laws of the contracting parties.
The Privy Council, over the years, has interpreted the constitutions of Jamaica and Trinidad in a way that moderates the imposition of the death penaity; Both Pratt and Morgan and Roodal v. State are now constitutional requirements that must be followed. It is the author’s further belief that stare decisis must and will be followed. It is unlikely that a court with a common law tradition could or would abandon these constitutional requirements previously ruled upon by the Privy Council.
It has been reported that the governments of Jamaica and Belize have announced plans to amend their constitutions so that they may carry out hangings despite Privy Council rulings. Barbados has already passed such a constitutional amendment. Such constitutional developments are troubling to death penalty abolitionists. However, because super majorities of legislators in parliament are required to amend the constitutions of most ESC countries in this regard, it is unlikely that one will see such constitutional changes in Jamaica and Belize very quickly. Until there are constitutional changes in countries other than Barbados, the five year limitation on death sentences of Pratt and Morgan and the sentencing determination of Roodal should moderate any rush to the death penalty with respect to the CCJ.
The formation of the CCJ presents a historic opportunity to start a new court for the Caribbean that will have original and appellate jurisdiction. However, for officials tasked with the original start up of the court the devil is truly in the details of initiating the project.
These start up details are those endemic to most organizations. The first detail has been convincing the heads of government of the signatory countries of the initial cost and the need for. A court is more than just judges. It has been estimated that start up costs for the first year of operation will total approximately five million dollars (U.S. $5 million) Two million dollars (U.S. $2 million) for staff and three million dollars (U.S. $3 million) for equipment, information teclmology, and library needs. Administrators in Trinidad overseeing the project estimate that aside from judges, a forty-two person staff will be needed. This projection was cut to twenty-six people for the initial year of operation. Officials also want the court to be high technology, with a capability for e-filing of pleadings, video conferenc-ing, and an online library. It is unclear whether this technology will be in place at the inauguration of the court, but eventually, it will be required if the CCJ is to reach its true capahility.
It is the author’s hope that this review of the purpose, history, implementation, and problems faced by the Caribbean Court of Justice provides an understanding of what people of color in the ESC have entered into in their final quest for self-determination.
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It is this author’S belief that the CCJ is required for the ESC countries to truly gain their status of independent sovereign nations, and that it will be conducive to the development of regional jurisprudence. The original jurisdiction of the court is required to fully carry out the initiatives of the CSME. A break with the Privy Council in London will give the ESC a court of final appeal that is geographically located in the region and will provide judges with an appreciation of local circumstances. The inauguration of the CCJ should truly signal the sunset of British colonial rule in the ESC.