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Tuesday, July 29, 2014
Trinidad & Tobago Guardian Online
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The CCJ: A symbol of Caribbean ingenuity
Since its inauguration in April 2005 by the distinguished Presidents and Prime Ministers of CARICOM member states, the Caribbean Court of Justice (CCJ) has stood as a symbol of Caribbean ingenuity. It continues to strive towards its vision to provide high quality justice and foster a jurisprudence that is reflective of the history, values and traditions of the region. As articulated in the court’s strategic plan 2013-2017, the CCJ is committed to attaining and preserving public trust and confidence.
To this end, the court welcomes opportunities to engage meaningfully with the people of the region on matters relating to its function and purpose. The court stands as a declaration and representation of the sovereignty and independence of member states of CARICOM.
It signifies their attempt to sever the last remaining vestiges of colonial dependency since it is widely felt that final judicial determination by the Judicial Committee of the Privy Council (the ‘Privy Council’) is inconsistent with our independence and is an impediment to the development of Caribbean jurisprudence. Former prime minister of Jamaica PJ Patterson aptly questions:
‘Can our sovereignty be complete when the final word on the law as an essential ingredient in the functioning of our State is still the subject of external decision-making and interpretation by a…court that is not indigenous?’ The importance of regional states having their own final court of appeal has been recognised even by the Privy Councillors themselves. In October 1999 Lord Browne-Wilkinson, former head of the Privy Council, commented:
‘The practice whereby a Court in Downing Street (London) seeks to decide what a country in the Caribbean should or should not do is not proving satisfactory…’
Similarly, Lord Phillips, another former president of the Supreme Court of the United Kingdom, has stated that ‘in an ideal world former Commonwealth countries—including those in the Caribbean—would stop using the Privy Council and set up their own final courts instead’.
At the annual dinner of the T&T Law Association in 2003, Lord Hoffman minced no words in publicly informing his hosts that “a court of your own is necessary if you are going to have the full benefit of what a final court can do to transform society in partnership with the other two branches of government”.
Institutional structure of the court
In establishing the CCJ, heads of government of CARICOM member states, in their responsibility to provide for the human, social, economic and political development of the region, were careful to create an institution worthy of confidence and emulation. They adopted the Revised Treaty of Chaguaramas (RTC) that enshrines the Court and subsequently agreed to the Agreement Establishing the CCJ (the ‘Agreement’).
The agreement is a treaty that binds all the signatory parties. It allowed signatories to enter reservations to the court’s appellate jurisdiction. Neither Jamaica nor T&T, the most populous English speaking states, entered any such reservation. The Governments of the region also created for the court a unique scheme for its funding.
Member states agreed that US$100 million should be borrowed and placed in the hands of carefully selected non-government trustees to be invested by them so that the returns from the investments could support the operation of the court in perpetuity. The scheme has worked well and within the next year the US$100 million would have been completely repaid. The trust fund today (nine years after the court was inaugurated) stands in the approximate sum of US$100 million.
The processes for the selection and appointment of the president and judges of the court are deliberately structured to ensure the highest levels of judicial independence. Judicial vacancies are advertised and appointments are made on the basis of application to and interview and selection by a broad based non-governmental body—The Regional Judicial and Legal Services Commission (RJLSC).
Upon recommendation by the RJLSC, the president is appointed by the Conference of Heads of Government of CARICOM for a non-renewable term of seven years. There is no requirement that the president should be a member of the Privy Council. The process is entirely transparent and based on merit. The criteria for selection are all set out in the agreement.
The CCJ in the region
The establishment and continued operation of the CCJ have been supported by member states of CARICOM in many ways.
These include the ratification of the RTC and the agreement; the creation and funding of the trust fund; the successful lobbying efforts of T&T to site the court in this country (which efforts were twinned with an assurance by the then Prime Minister that the State would withdraw its proposal to house the court if it did not fulfil its obligations to accede both to the original and appellate jurisdictions of the court); and the provision by T&T of a suitable building and ancillary services for the court in keeping with its host country agreement.
This country, its corporate nationals, and some of its attorneys, including Attorney General Ramlogan, have appeared in cases before the court. The court regularly hears appeals from Guyana, Barbados and Belize and the feedback received on the satisfaction of court users has been positive. Only recently the Prime Minister of T&T, the Honourable Kamla Persad-Bissessar, made it clear that it is inevitable that T&T will join the CCJ in its appellate jurisdiction.
The Prime Minister of Jamaica and officials of other member states have made similar statements reflecting their confidence in the CCJ and their intention to make the court the final arbiter of their disputes in both the domestic and regional spheres. These expressions of support and confidence attest to the superior level of access to justice offered by the CCJ.
The opportunity afforded deserving litigants, who lack the means to take their appeals to the Privy Council, to appear before a well-respected Caribbean final court, is a benefit that should be welcomed by all. It marks another vital step in the maturation of our post-colonial societies.
Region of excellence
The CCJ therefore reflects the progress of the people of a region that boasts a wealth of learning, talent and resources. Sir Shridath Ramphal once highlighted: ‘From our Caribbean shores we have sent judges to the International Court of Justice, the Presidency of the United Nations Tribunal on the Law of the Sea; to the International Criminal Court and the International Court for the former Yugoslavia and, of course, to the International Criminal Tribunal for Rwanda…’