Caribbean Court of Justice: Failure to Recognize its Appellate Jurisdiction is a Lack of Self Respect : Time for Civil Society to Take Action.

Honorable Mr Adrian Saunders, President , Caribbean Court of Justice

The Caribbean Court of Justice (CCJ) was inaugurated on April 16, 2005  with a grand ceremony in Trinidad and Tobago. It ushered in a Court with two jurisdictions.  The first is an original jurisdiction in which the CCJ   interprets and applies the Revised Treaty of Chaguaramas for the Caribbean Community (CARICOM). The second is an appellate jurisdiction that hears appeals as the court of last resort in both civil and criminal matters from those member states which have ceased to allow appeals to the Judicial Committee of the Privy Council (JCPC).

The 2005 ceremony  inspired optimism which  can be more clearly understood by a progression of events. CARICOM’s admissions of Dutch-speaking Suriname in 1995, and Créole-speaking Haiti where French is the official language in 2002,  substantially enhanced the cultural and judicial mix of the Community. The Conference of Caribbean Heads of Government meeting in Bahamas in 2001 signed the revised Treaty of Chaguaramas replacing  the Community and Common Market with the proposed CARICOM Single Market and Economy. This was seen as a step toward a maturing integration system functioning as a multistate democracy of Sovereign states. The laudable concept included  the CARICOM Heads of Government and the Community Council as an executive arm; an Assembly of Caribbean Community Parliamentarians (ACCP) as a legislative arm and the CCJ, as its  judicial  arm.

In that era also the CARICOM Heads of Government Meetings made provision for a space for dialogue with the private sector and also agreed to make a civil society forum introduced in 2003 a triennial feature in the CARICOM Agenda. More recently. Ambassador Irwin LaRocque, CARICOM's Secretary General has institutionalized an annual  engagement with Caribbean Youth in collaboration with the CARICOM Youth Ambassadors corps. However, in the intervening period the ACCP fizzled after three meetings and so did the space for dialogue with  the private sector and civil society. Also, the CCJ in its appellate jurisdiction is floundering for what may be generously be interpreted as a lack of confidence.

Our focus on the CCJ is due to the belief that its existence, acceptance and sustainability  are integral to the self -respect of Caribbean people.

The Contextual History of Advocacy  for a Regional Court in the Caribbean

As early as 1901 there is reference to an  Editorial in the Jamaica Gleaner newspaper on the need for a Regional court to service the  British colonies of the West indies. In 1970, the Jamaica delegation tabled a proposal at the Sixth Meeting of the Heads of Government Conference of Commonwealth Caribbean Countries for the establishment of a Regional Court of Appeal.  Similar recommendations were made by the Organization of the Commonwealth Caribbean Bar Associations in 1970; at the tenth CARICOM Heads of Government Meeting in 1989; and in the Time for Action Report of the West Indian Commission in 1992. There was also the signing of agreements between 2001-2003 by all  CARICOM countries to establish the Caribbean Court of Justice. Consequently, in August 2003 the first meeting of the Regional Judicial and Legal Services Commission (RJLSC) was held and on  August 18, 2004, The Right Honourable, Mr. Justice Michael de la Bastide of Trinidad and Tobago was sworn in as the first President of the Caribbean Court of Justice.

The CARICOM Single Market and Economy triggered the need for the settlement of disputes as reflected in the  Revised Treaty of Chaguaramas. Consequently, the main challenges facing the RJLSC were making provision for the composition of the Court by  competent Caribbean judges and freeing the Court from political interference by guaranteeing its operations through a Trust fund, managed by an independent commission.  All CARICOM countries except The Bahamas have signed on to the CCJ in its original jurisdiction and contribute to the its Trust fund. The major concern is that so far only Barbados, Belize , Dominica and Guyana have signed on the Court in its appellate jurisdiction

A Regional Court essential to a Caribbean  Civilization

The case for discontinuing the  gratuitous service from British judges ‘which our West Indian judges are capable of providing  ourselves’ is not novel nor new. in the 1960s, Norman Manley believed that the Privy council as the final court in a foreign land was incapable of molding a Caribbean jurisprudence.  Guyana’s 1966 Independence constitution sanctioned the abolition of appeals to the Privy Council. Owen Arthur, Prime Minister of Barbados in a lecture to the Institute of International Relations, UWI, St. Augustine in 2004 was emphatic that  “every civilization in history has become a civilization on the strength of its capacity to deliver justice on its own. What are we as a people if we have to look to others to deliver justice for us”.

There are the many references to  the capability in the Caribbean to effectively operate Its own final court of appeal.   One of the most poignant examples is provided in The Dictionary of Caribbean and Afro- Latin American Biography (Oxford University Press 2016  Vol 3).  It refers  to the memorial lecture in 2004  by The Rt. Hon. Justice Michael de la Bastide, President of the Caribbean Court of Justice on  Telford Georges, a Dominican and pioneering campaigner for the CCJ. The lecture highlighted Justice Georges’ unshakeable confidence in the maturity of the region’s jurists and their capacity to manage a robust judicial system and sustain the CCJ as a cornerstone of the Caribbean Community. This view was no doubt shared by the Privy Council, when for example, in reference to the judgment of one of the Region’s Courts of Appeal ( Bertoli et al V Malone 1991), it said:
 
“…the arguments and the authorities have been so fully and so meticulously rehearsed in the careful and instructive judgment of the Court of Appeal … that it would be a work of supererogation for their Lordships to repeat what was there said in different and probably less felicitous language. They are content to accept and adopt the reasoning … in toto”. The author of that Court of Appeal judgment was Justice Phillip Telford Georges.
 
In 1992, the West Indian Commission Report, Time for Action,  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?”

There are other persuasive arguments put forward by many students of constitutional law. They include:   

• Independence cannot be claimed when the final judicial decisions reside  with judges drawn almost exclusively from the former colonial power.

• Recognition that judicial independence is an important component in casting aside negative psychological legacies from colonialism.
• A Regional  Appellate Court as distinct from the Privy Council, will, by definition, have superior knowledge and sensitivity concerning Caribbean realities.
• Development of a Caribbean jurisprudence is an objective that is best achieved by a regionally-based Court.
• All but  14 Commonwealth countries, previously colonies of Britain  and motivated by the need to assert “self-determination” have cut the umbilical cord with the Privy Council. Eight of the 14 are CARICOM States.

Why the Negative view of the CCJ

Although some governments were excited over the CCJ, the people themselves have not harboured similar sentiments. According to Justice Adrian Saunders, President of the CCJ, this may partly be  blamed on the court’s communications strategy and partly to the blow-back of a lack of confidence in the ability of local courts. He refers a characterization of the CCJ by Caribbean citizens: “ a feeling that if we are not very happy with the way in which justice is being delivered on the local stage, then why are we going to add on top of that another local-Caribbean layer?". He however rejects the notion that continuing  to support appeals to the Privy Council on the basis that local judges are too close to power wielders and that politicians could exit the court at any time, creating a constitutional crisis.

Yet Judging from responses of Caribbean citizens,  negative notions of the value of the CCJ, prevail. The  results of all but one (Guyana 1978) of eight referenda to secure majorities for  constitutional reforms in the post-independence have failed. These include Nevis (1988),  The Bahamas (2002 and 2016), St Vincent and the grenadines (2009), and Grenada (2016 and 2018). The latest rejections in 2018 referenda in Antigua and Barbuda and Grenada are instructive.  Grenada’s government had won all 15 seats in the General elections, 8 months earlier. The Government of Antigua and Barbuda came to power in the same period winning 15 of 17 seats. The situation is adequately reflected in the statement by David O’Brien:  “it is unlikely that any government will in the circumstances and in the absence of political maturity and magnanimity, pursue any further constitutional reform in the near future" (The end of the CCJ? International Institute for Democracy and Electoral Assistance (IDEA) November 26, 2018)  

Taking Action for Self -Respect

There are  difficulties faced by our political leaders to take the CCJ over the finish line. Civil Society  therefore needs to step up to the plate in its self-interest. The main issue is for civil society , including youth leaders, members of  bar associations, in particularly young jurist to advocate for a change in citizens' perceptions and understanding of the importance of the CCJ to the sustainability of the Caribbean Community.  This requires sharing and disseminating information through public fora and social media, applying the power of disruption through peaceful demonstrations and “calling out parliamentarians” to work  toward bipartisan solutions. There are several options for consideration.

First, It is now widely accepted that the CCJ, in its original jurisdiction, does have a vital  role to play in the development of Caribbean Community Law, especially in relation to the dispute settlement procedures.  The celebrated case Shanique Myrie, a Jamaican vs the Government of Barbados is an outstanding example of an empowered Court. 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. In this respect it has “widened and enlarged the bundle of rights of the Citizens of the Caribbean Community.”

Second. the negativity toward the CCJ can be reversed.  The Constitutions of Jamaica and St Lucia require a two-thirds majority of both Houses to amend the entrenched provisions.  In Jamaica there remains a stalemate as the Jamaica Labour Party insists on the need for a referendum. A similar stalemate exists in Trinidad and Tobago where a  bi-partisan approach to achieving an absolute majority in both Houses of Parliament, will suffice. In St Vincent the Grenadines, the withdrawal of support by the opposition, New Democratic Party was blamed  for the 2009 vote against the CCJ. The current governments of St Lucia and St Kitts and Nevis, the CCJ is not an identified priority. None of these challenges is insurmountable.

Third, referenda rarely provide the solutions on issues of constitutional reform.   They become entangled with political matters beyond the question put to the electorate. They are often distorted by disinformation and political wars as in the case of Brexit in the UK. Given the history of failed referenda across the Caribbean since independence, governments will most likely be unwilling to expend political capital to use them as  a source of gaining popular support for constitutional reform.

Fourth, after 14 years in operation,  the independence of the CCJ judges and their insulation from political influence or interference seem to be intact. So are the procedures for  financial sustainability through the Trust Fund. In addition, the CCJ’s 2019-2022 Strategic plan clearly articulates steps to address a number of issues that have prevented it from being accepted and seen in a positive light among the masses across the region.

Fifth, while constitutional bottlenecks do exist, the current situation is by and  large due to a lack of political will. It is more so the creatures of political partisanship, political tribalism and political adventurism.  How else to interpret the threat of former Prime Minister Stuart of Barbados (2018) to withdraw his country from the CCJ because of judgements " by politician in robes" given against Barbados . Or the  decision of the opposition parties in Grenada and Antigua and Barbuda, according to Ron Saunders “to give the governing party a bloody nose”.

Conclusion

As we plan for the celebration of 15 years of the CCJ in 2020, it is essential  to exercise options and take action. A viable judicial arm of a Caribbean Community is critical to "unlocking the potential" of the Caribbean. It is vital to a Caribbean civilization. It is a prerequisite to ensuring that constitutions adapt to the changing times. Unfortunately,  essential pillars of the governance structure of the Caribbean Community that could deliver on this mission have been discontinued. Hence the restoration of the Association of Caribbean Parliamentarians and the Civil Society Dialogue in the calendar of the Caribbean Community is worth considering. At least there is need to redouble efforts  to replace the gloomy outlook on constitutional reform with the prospects of a future brightened by the triumph of our self-respect.


Eddie Greene

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