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Caribbean Court of Justice and Privy Council

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Public law

  1. 1. PUBLIC LAWThe Caribbean Court of Justice (CCJ) or the Privy CouncilCandidates Name: Jamol Augustine FerdinandCandidates Number:Centre Number:Date Submitted:Subject: LawName of College: St Vincent Community College
  2. 2. Table of ContentsStudy Area .....................................................................................................................................2Methodology ..................................................................................................................................3Argument ...................................................................................................................................... 4Bibliography ................................................................................................................................12 1
  3. 3. Area of Research“To argue the view point that the Caribbean Court of Justice (CCJ) would not be as effective asthe Privy Council to execute its duties as the Final Appeal court of the Eastern Caribbean”. 2
  4. 4. MethodologyThe findings for this assessment derived from interviews with Legal professions and politicalactivist and complemented with literature from texts on public law texts as well as onlineresources. 3
  5. 5. The CCJ or the Privy Council Over a period of almost three centuries, ending at the close of World War II, GreatBritain 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 ruledcolonies 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 ofthe former colonies formed their own governments, implemented their own parliaments, anddevised their own court systems. Many became Commonwealth countries, keeping strong ties toBritain while others became republics. Despite their independence however, most formercolonies retained the English common law as part of their legal system. As part of this Britishlegal 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” astheir final court of appeal. Although these countries implemented local court systems, there mayhave been the belief that their legal traditions were still too new to have produced judges withenough experience to sit on a court of final appeal. This Judicial Committee of the Privy Councilis often referred to simply as the Privy Council. The Privy Council is a part of the House of Lords in London, England, and consist ofsenior judges who look at appeals from trials in lower courts and decide if any there were errorsin their proceedings. The Privy Council has remained the final court of appeal for many countriesof the Caribbean Community “CARICOM” up to the present time with much uncertainty. Thedrive to achieve full independence and unity as a Caribbean Region has led to many nationsquestioning the need for their own final appeal court. Therefore, in 2001, a number of EnglishSpeaking Caribbean countries (ESC) signed an Agreement Establishing the Caribbean Court of 4
  6. 6. Justice (CCJ) “Agreement”. This CCJ, is designed to perform dual functions. Firstly, the CCJwill operate as the final court of appeal for the ESC to replace the Privy Council as the court offinal appellate jurisdiction for decisions on criminal and civil matters. Secondly, it will be a courtof original jurisdiction and function as an international court to settle disputes of ESC countriesunder 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 ESCwith the aim of strengthening regional integration in a postcolonial world. The implementation ofthe CCJ, the formation of a regional, “super national” court by the ESC and viewed as an historiclegal accomplishment of which there would be global recognition. The formation of the CCJ isshould be regarded as a final step in the self-determination of people of colour in the ESC to riseabout 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 PrivyCouncil. However, there are still countries that are unwilling to move away from the PrivyCouncil despite the establishment of the CCJ. This even as the Agreement to establish, theCaribbean Court of Justice was formulated and ratified by the requisite number of ESC membersstates. There are arguments that the CCJ would not be as effective as the Privy Council inexecuting its duties as the Final Appeal court of the Eastern Caribbean. They argue that, themotivation for the implementation of the Court is power driven by the governments of the daywho 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. Inrelation to the independent nations of the region, the CCJ will be a non-national Court both in 5
  7. 7. constitutional terms as well as in composition and would therefore be in no different positionthan the Privy Council. There are also questions about the influence of politics on appointmentsto the court, which threatens its independence. There are concerns that the CCJ will not dispenseimpartial justice and judges would not be competent enough to make the right decisions inaddition with the high cost to upkeep the court. The argument that the motivation for the implementation of the court is the governmentsof the day who have been stung by reversals in the death penalty cases brought before the PrivyCouncil is somewhat vague. The formation of the court had the initial support of most of theCARICOM states. Ten (10) Heads of Regional Governments, as contracting parties, signed theagreement 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 ofTrinidad and Tobago. The main purpose is to strengthen and deepen judicial independence andregional integration. In an ever-changing world and as independent states we need to move awayfrom our colonial masters and embrace our own achievements. The importance of this isexpressed by Prime minister 1Dr. Kenneth Anthony, who said that the “need for the nations ofthe Caribbean to assert the constitutional legitimacy of our own civilisation, is more fundamentalthan a mere emotive claim to a theoretical sovereignty, without practical significance, orpersuasive symbolism. It is in my view, simply a hard statement of principle, which should notadmit to compromise at this point in our history”. Supporters of the CCJ argue that the PrivyCouncil is too remote from the realities of the legal, cultural and economic environment within1 Dr. Kenneth Anthony, who said that the “need for the nations of the Caribbean to assert the constitutionallegitimacy 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”. 6
  8. 8. independent Caribbean countries. The CCJ would therefore consist of judges who are morefamiliar with the Caribbean, has a better understanding of the socio-cultural background of theseislands 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 theHouse 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 beforethem 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 inthe appointments of positions is a very robust argument. Article V of the Agreement providescriteria, which guides the structure of CCJ through the establishment of the Regional Judicial andLegal 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 CaribbeanBar Association. There shall be one chairman of the Judicial Services Commission of acontracting party; the chairman of a public service commission of a contracting party; twopersons from civil society following consultation with regional nongovernmental organizations;two distinguished jurists nominated by law school deans; and two persons nominated jointly bythe bar associations of the contracting parties. Therefore, to say that appointments would bepolitically motivated is an unjustified statement without merit. The Privy Council, comprise of emember of the house of commons, speakers and even leader of the opposition are sitting on thecouncil to make decisions, they also can be bought out by political leaders in the Caribbeanespecially if they are very close allies. In relation to the various reasons given by theCommission in their Minority Report, it seems to suggest reluctance on the part of theCommission to assume the responsibility of independence. Dr. Fenton Ramsahoye, a leading 7
  9. 9. Caribbean lawyer, as quoted by Rawlins; 2000 felt that it is time we take on our ownresponsibility 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 thestandpoint as to whether they are interpreting cases on a moral or positivist viewpoint. In theAgreement establishing the Caribbean Supreme Court, the political leaders have a say only in theappointment of the President of the court through a majority vote. An independent regionalJudicial and Legal Services Commission appoint the other judges of the court. The one regionalcourt in existence, the OECS Court, suggests that, in practice, such regional arrangements haveworked well although they may not be immune from political and parochial influences withrespect 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 Islandsas 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 thenot 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 thesustenance of its members and the courts. 8
  10. 10. 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 judicialexperience. These judges would have sat for many years in other jurisdictions in the Caribbeanand even on the Privy Council and make sound and just decisions on cases before them. Theissue of the cost is a perhaps a justified on but the cost of going to the Privy Council is oftenextremely high and prohibitive. This is suggested as one reason for the low turnover of PrivyCouncil Appeals. Therefore, the question of cost is not limited to the funding of the CCJ. Agrave defect in our legal system is the relatively poor access to justice. Justice is expensive atevery level, mainly because of the absence of contingency fees as found in the US and theglaring absence of adequate legal aid for many matters. However though ill wrap up with thequote of a famous Caribbean legal intellect, Justice Duke Pollard to say that “ ... there is nowanother reason for establishing a court of high authority in the Region, and that is the process ofintegration itself.Integration in its broadest economic sense - involving a Single CARICOM Market, monetaryunion, the movement of capital and labour and goods, and functional co-operation in amultiplicity of fields ,must have the underpinning of Community law. Integration rests on rightsand duties; it requires the support of the rule of law applied regionally and uniformly. ACARICOM Supreme Court interpreting the Treaty of Chaguaramas, resolving disputes arisingunder it, including disputes between Governments parties to the Treaty, declaring and enforcingCommunity law, interpreting the Charter of Civil Society - all by way of the exercise of anoriginal jurisdiction - is absolutely essential to the integration process. Itrepresents in our recommendations one of the pillars of the CARICOM structures of unity. 9
  11. 11. Essentially, our recommendation is that the Court should have an original jurisdiction in mattersarising under the Treaty of Chaguaramas (as revised) and that any CARICOM citizen (individualor corporate) and any Government of a Member State of the Community or the CARICOMCommission itself, should have the competence to apply for a ruling of the Court in a matterarising under the Treaty. This will include, perhaps prominently so, matters in dispute betweenMember States in relation to obligations under the Treaty, particularly under the Single Marketregime; but it will also provide for clarification of Community law as it develops pursuant todecisions taken within the CARICOM process. As already indicated, we envisage that thatoriginal jurisdiction should also be exercisable to a limited degree in the context of theCARICOM 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 animportant footnote to what we have said about the establishment of the CARICOM SupremeCourt that the process of development of Community law in the future will be part of the equallynecessary evolution of reform of our legal systems themselves. The point we make here is thatwe can now look for return on the investment the Region has made in the development of law asa major discipline in the University of the West Indies.” In conclusion, the Caribbean community persevere with the process of regionalintegration and independence of our judicial system. The task ahead will not be easy to convinceour 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 effectivenesswill grow as it executes duties to Caribbean Nationals as a final court. In the final analysis whenthe Privy Council Judicial Committee finally relinquish ties with the former colonies we wouldbe well established and in a position to hold our own. It is time that the region stands its ground 10
  12. 12. and continues what was started by those ten states who signed that initial agreement. Whilemore can be done to secure the court‟s foundation, it has to start somewhere with mutual supportand interventions. I hope that there will soon be more countries other than Guyana andBarbados. Other CARICOM countries need to fashion their constitutions to have the CCJ astheir final appeal court. 11
  13. 13. BibliographyAntoine, Rose-Marie Bell. Commonwealth Caribbean Law and Legal Systems. 2nd ed. NewYork: Routeledge-Cavendish, 2008.Pollard Duke: The Caribbean Court Of Justice. Closing The Circle Of Independence. CaribbeanLaw Publishing Company,Jamaica (Jamaica), 2004 .CARICOM Secretariat (2001) Revised Treaty of Chaguaramas Establishing the CaribbeanCommunity 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 CaribbeanCommunity (Protocol IX Dispute Settlement).CARICOM Secretariat (1999) Protocol on the Privileges and Immunities of the Caribbean Courtof Justice and theRegional and Legal Service CommissionCARICOM Secretariat (1973) Treaty Establishing the Caribbean Community and CommonMarket, Signed July 4, 1973.Caribbean Court of Justice (2012) The fifth annual Caribbean media conference the Caribbeancourt of justice. Available at: [Accessed: 22 February 2012]Caribbean Court of Justice (2012) Available at: [Accessed: 20 February 2012Caribbean Court of Justice (2012) One Court with two Jurisdictions – A Unique JudicialInstitution. Available at: [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: [Accessed: 24 February2012].Le Sueur, Andrew. (2001) What is the future for the Judicial Committee of the Privy Council?Available at: [Accessed: 18thFebruary 2012]. 12
  14. 14. Rawlins, Hugh. The Caribbean Court of Justice: The History and Analysis of the Debate.Guyana: Caribbean Community Secretariat, 2000.InterviewsSylvester. (2012) Interview with Lawyer Nicole Sylvester. Interviewed by Jamol Ferdinand, 8January.Thomas, J. (2012) Interview with Lawyer, Jomo Thomas. Interviewed by Jamol Ferdinand, 8January.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 byJamol Ferdinand, 9 February. 13