User:Augustine Ferdinand/sandbox

“'''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”. '''

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 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 sug­gested 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 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 [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”. 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 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 their judgement on cases 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 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 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 perhaps  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 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 theCARICOM Charter of Civil Society which we have separately recommended. '''I 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 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. Augustine Ferdinand

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 the Regional 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].

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.