PUBLIC LAW

The Caribbean Court of Justice (CCJ) or the Privy Council

Candidates Name: Jamol Augustine Ferdinand

Candidates Number:

Centre Number:

Date Submitted:

Subject: Law

Name of College: St Vincent Community College

Table of Contents

Study Area 2

Methodology 3

Argument ...................................................................................................................................... 4

Bibliography ................................................................................................................................12

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Area of Research

“To argue the view point that the Caribbean Court of Justice (CCJ) would not be as effective as

the Privy Council to execute its duties as the Final Appeal court of the Eastern Caribbean”.

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Methodology

The findings for this assessment derived from interviews with Legal professions and political

activist and complemented with literature from texts on public law texts as well as online

resources.

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The CCJ or the Privy Council

Over a period of almost three centuries, ending at the close of World War II, Great

Britain ruled a vast colonial empire. During this period, to writer John Wilson it was said that,

“the sun never set on the British Empire” its rule spread far across the world. 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 while others became republics. Despite their independence however, most former

colonies retained the English common law as part of their legal system. As 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, there may

have been the belief that their legal traditions were still too new to have produced judges with

enough experience to sit on a court of final appeal. This Judicial Committee of the Privy Council

is often referred to simply as the Privy Council.

The Privy Council is a part of the House of Lords in London, England, and consist of

senior judges who look at appeals from trials in lower courts and decide if any there were errors

in their proceedings. The Privy Council has remained the final court of appeal for many countries

of the Caribbean Community “CARICOM” up to the present time with much uncertainty. The

drive to achieve full independence and unity as a Caribbean Region has led to many nations

questioning the need for their own final appeal court. Therefore, in 2001, a number of English

Speaking Caribbean countries (ESC) signed an Agreement Establishing the Caribbean Court of

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Justice (CCJ) “Agreement”. This CCJ, is designed to perform dual functions. Firstly, the CCJ

will operate as the final court of appeal for the ESC to replace the Privy Council as the court of

final appellate jurisdiction for decisions on criminal and civil matters. Secondly, it will be a court

of original jurisdiction and function as an international court 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 the vision of those who wish to ensure autonomy of judicial determinations in the ESC

with the aim of strengthening regional integration in a postcolonial world. The implementation of

the CCJ, the formation of a regional, “super national” court by the ESC and viewed as an historic

legal accomplishment of which there would be global recognition. The formation of the CCJ is

should be regarded as a final step in the self-determination of people of colour in the ESC to rise

about the oppression of their ancestors. Over the years, citizens and politicians of the ESC sug-

gested that the ESC should form their own supreme court and relinquish ties with the Privy

Council. However, there are still countries that are unwilling to move away from the Privy

Council despite the establishment of the CCJ. This even as the Agreement to establish, the

Caribbean Court of Justice was formulated and ratified by the requisite number of ESC members

states. 

There are arguments that the CCJ would not be as effective as the Privy Council in

executing its duties as the Final Appeal court of the Eastern Caribbean. They argue that, the

motivation for the implementation of the Court is power driven by the governments of the day

who have been stung by reversals in death penalty cases brought before the Privy Council.

Critics view the argument of nationalism and sovereignty as blind and lacking in consistency. In

relation to the independent nations of the region, the CCJ will be a non-national Court both in

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constitutional terms as well as in composition and would therefore be in no different position

than the Privy Council. There are also questions about the influence of politics on appointments

to the court, which threatens its independence. There are concerns that the CCJ will not dispense

impartial justice and judges would not be competent enough to make the right decisions in

addition with the high cost to upkeep the court.

The argument that the motivation for the implementation of the court is the governments

of the day who have been stung by reversals in the death penalty cases brought before the Privy

Council is somewhat vague. The formation of the court had the initial support of most of the

CARICOM states. Ten (10) Heads of Regional Governments, as contracting parties, signed the

agreement establishing the Caribbean Court of Justice in Barbados on the 14th February 2001.

They were Antigua and Barbuda, Jamaica, Barbados, St. Kitts and Nevis, Belize, St. Lucia,

Grenada, the Republic of Suriname, the Co-operative Republic of Guyana and the Republic of

Trinidad and Tobago. The main purpose is to strengthen and deepen judicial independence and

regional integration. In an ever-changing world and as independent states we need to move away

from our colonial masters and embrace our own achievements. The importance of this is

expressed by Prime minister 1Dr. Kenneth Anthony, who said that the “need for the nations of

the Caribbean to assert the constitutional legitimacy of our own civilisation, is more fundamental

than a mere emotive claim to a theoretical sovereignty, without practical significance, or

persuasive symbolism. It is in my view, simply a hard statement of principle, which should not

admit to compromise at this point in our history”. Supporters of the CCJ argue that the Privy

Council is too remote from the realities of the legal, cultural and economic environment within

independent Caribbean countries. The CCJ would therefore consist of judges who are more 1 Dr. Kenneth Anthony, who said that the “need for the nations of the Caribbean to assert the constitutional legitimacy of our own civilisation, is more fundamental than a mere emotive claim to a theoretical sovereignty, without practical significance, or persuasive symbolism. It is in my view, simply a hard statement of principle, which should not admit to compromise at this point in our history”.

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familiar with the Caribbean, has a better understanding of the socio-cultural background of these

islands and are in a better position to make keen judgments based on current issues before them.

The Privy Council on the other hand consist of past cabinet members, certain members of the

House of Commons and members of the Royal Family. They hardly understand the socio-

cultural and historical background of the region and are unlikely to relate to the issues before

them in the Privy Council. This can hinder the way they hand down certain decisions.

The argument that the courts would lack independence because of political influence in

the appointments of positions is a very robust argument. Article V of the Agreement provides

criteria, which guides the structure of CCJ through the establishment 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 Commonwealth Bar Association and the Eastern Caribbean

Bar Association. There shall be 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. Therefore, to say that appointments would be

politically motivated is an unjustified statement without merit. The Privy Council, comprise of e

member of the house of commons, speakers and even leader of the opposition are sitting on the

council to make decisions, they also can be bought out by political leaders in the Caribbean

especially if they are very close allies. In relation to the various reasons given by the

Commission in their Minority Report, it seems to suggest reluctance on the part of the

Commission to assume the responsibility of independence. Dr. Fenton Ramsahoye, a leading

Caribbean lawyer, as quoted by Rawlins; 2000 felt that it is time we take on our own

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responsibility of a final court despite the dissenting views as display or our “nationalism” and

“independence”.

The opposing view that the CCJ will not dispense impartial justice is based on the

standpoint as to whether they are interpreting cases on a moral or positivist viewpoint. In the

Agreement establishing the Caribbean Supreme Court, the political leaders have a say only in the

appointment of the President of the court through a majority vote. An independent regional

Judicial and Legal Services Commission appoint the other judges of the court. The one regional

court in existence, the OECS Court, suggests that, in practice, such regional arrangements have

worked well although they may not be immune from political and parochial influences with

respect to the appointment of its judges. In the final analysis, there is no perfect judicial system,

no matter how rigorous the selection process, there would always be flaws. In addition to that,

the CCJ is also accepting applicants from other English Speaking countries including England,

South Africa, and Commonwealth countries such as, Australia, Nigeria, and the Solomon Islands

as judges for the Caribbean Court of Justice. This offers an even greater level of transparency,

experience and proficiency in the judicial system. Despite the lack of commitment to the CCJ,

there are issues concerning the Privy Council judicial committee and its services ending in the

not too distant future. The British Government is planning to end the judicial committee.

According to Lord Nicholas Fredericks, “the Law Lords on the Privy Council were spending a

‘disproportionate’ amount of time on cases from former colonies, mostly in the Caribbean.”

Notwithstanding that, the Privy Council is facing financial constraints in relation to the

sustenance of its members and the courts.

The argument that judges will not be competent enough to make the right decisions is absurd,

the Commission is looking for qualified persons with at least fifteen years of legal and/or judicial

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experience. These judges would have sat for many years in other jurisdictions in the Caribbean

and even on the Privy Council and make sound and just decisions on cases before them. The

issue of the cost is a perhaps a justified on but the cost of going to the Privy Council is often

extremely high and prohibitive. This is suggested as one reason for the low turnover of Privy

Council Appeals. Therefore, the question of cost is not limited to the funding of the CCJ. A

grave defect in our legal system is the relatively poor access to justice. Justice is expensive at

every level, mainly because of the absence of contingency fees as found in the US and the

glaring absence of adequate legal aid for many matters. However though ill wrap up with the

quote of a famous Caribbean legal intellect, Justice Duke Pollard to say that “ ... there is now

another reason for establishing a court of high authority in the Region, and that is the process of

integration itself.

Integration in its broadest economic sense - involving a Single CARICOM Market, monetary

union, the movement of capital and labour and goods, and functional co-operation in a

multiplicity of fields ,must have the underpinning of Community law. Integration rests on rights

and duties; it requires the support of the rule of law applied regionally and uniformly. A

CARICOM Supreme Court interpreting the Treaty of Chaguaramas, resolving disputes arising

under it, including disputes between Governments parties to the Treaty, declaring and enforcing

Community law, interpreting the Charter of Civil Society - all by way of the exercise of an

original jurisdiction - is absolutely essential to the integration process. It

represents in our recommendations one of the pillars of the CARICOM structures of unity.

Essentially, our recommendation is that the Court should have an original jurisdiction in matters

arising under the Treaty of Chaguaramas (as revised) and that any CARICOM citizen (individual

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or corporate) and any Government of a Member State of the Community or the CARICOM

Commission itself, should have the competence to apply for a ruling of the Court in a matter

arising under the Treaty. This will include, perhaps prominently so, matters in dispute between

Member States in relation to obligations under the Treaty, particularly under the Single Market

regime; but it will also provide for clarification of Community law as it develops pursuant to

decisions taken within the CARICOM process. As already indicated, we envisage that that

original jurisdiction should also be exercisable to a limited degree in the context of the

CARICOM Charter of Civil Society which we have separately recommended.

We believe the arguments for the Court to be unassailable. It needs only to be added as an

important footnote to what we have said about the establishment of the CARICOM Supreme

Court that the process of development of Community law in the future will be part of the equally

necessary evolution of reform of our legal systems themselves. The point we make here is that

we can now look for return on the investment the Region has made in the development of law as

a major discipline in the University of the West Indies.”

In conclusion, the Caribbean community persevere with the process of regional

integration and independence of our judicial system. The task ahead will not be easy to convince

our people of our abilities to manage our own Court of Appeal and replace the Privy Council.

The CCJ may not appear to be as effective as the Privy Council but given time, its effectiveness

will grow as it executes duties to Caribbean Nationals as a final court. In the final analysis when

the Privy Council Judicial Committee finally relinquish ties with the former colonies we would

be well established and in a position to hold our own. It is time that the region stands its ground

and continues what was started by those ten states who signed that initial agreement. While

more can be done to secure the court’s foundation, it has to start somewhere with mutual support

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and interventions. I hope that there will soon be more countries other than Guyana and

Barbados. Other CARICOM countries need to fashion their constitutions to have the CCJ as

their final appeal court.

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Bibliography

Antoine, Rose-Marie Bell. Commonwealth Caribbean Law and Legal Systems. 2nd ed. New York: Routeledge-Cavendish, 2008.

Pollard Duke: The Caribbean Court Of Justice. Closing The Circle Of Independence. Caribbean Law Publishing Company,Jamaica (Jamaica), 2004 .

CARICOM Secretariat (2001) Revised Treaty of Chaguaramas Establishing the Caribbean Community including the CARICOM Single Market Economy.

CARICOM Secretariat (2001) Agreement Establishing the Caribbean Court of Justice.

CARICOM Secretariat (2000) Protocol Amending the Treaty establishing the Caribbean Community (Protocol IX Dispute Settlement).

CARICOM Secretariat (1999) Protocol on the Privileges and Immunities of the Caribbean Court of Justice and theRegional and Legal Service Commission

CARICOM Secretariat (1973) Treaty Establishing the Caribbean Community and Common Market, Signed July 4, 1973.

Caribbean Court of Justice (2012) The fifth annual Caribbean media conference the Caribbean court of justice. Available at: http://www.caribbeancourtofjustice.org/papersandarticles/ccj-lake.pdf [Accessed: 22 February 2012]

Caribbean Court of Justice (2012) Available at: http://www.caribbeancourtofjustice.org/old/about.htm [Accessed: 20 February 2012

Caribbean Court of Justice (2012) One Court with two Jurisdictions – A Unique Judicial Institution. Available at: http://www.law.uga.edu/intl/bernaz.pdf [Accessed: 17 February 2012]

Elliot, Mark. and Robert Thomas. Public Law. Oxford: Oxford University Press, 2011.

Hayton, Justice. (2006) The Role of the Caribbean Court of Justice: An Overview. Barbados.

James, Goddard. (2012) Prepare for end of Privy Council. Available at: http://www.guardian.co.tt/letters/2012-01-28/prepare-end-privy-council [Accessed: 24 February 2012].

Le Sueur, Andrew. (2001) What is the future for the Judicial Committee of the Privy Council? Available at: http://www.ucl.ac.uk/spp/publications/unit-publications/72.pdf [Accessed: 18th February 2012].

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Rawlins, Hugh. The Caribbean Court of Justice: The History and Analysis of the Debate. Guyana: Caribbean Community Secretariat, 2000.

Interviews

Sylvester. (2012) Interview with Lawyer Nicole Sylvester. Interviewed by Jamol Ferdinand, 8 January.

Thomas, J. (2012) Interview with Lawyer, Jomo Thomas. Interviewed by Jamol Ferdinand, 8 January.

Sylvester, N. (2012) Interview with Lawyer, Nicole Sylvester. Interviewed by Jamol Ferdinand, 15 February.

Jones-Morgan, J. (2012)Interview with Attorney General Judith Jones-Morgan. Interviewed by Jamol Ferdinand, 9 February.

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