II - THE APPELLATE JURISDICTION OF THE CARIBBEAN COURT OF JUSTICE

Q. Why does the region need its own court of last resort for civil and criminal matters?

A. The simple answer is to ensure autonomy of judicial determinations in the region in order to complete the process of independence. However, on a more pragmatic basis, for the laws of the region to inspire confidence and ensure voluntary compliance, they should mirror the collective social ethos of our peoples and, to be relevant and responsive, should be interpreted and applied by Judges who would have internalised the values informing the content of that collective social ethos.

Q. But is it not reasonable to assume that the Judges of the Privy Council, being removed from the social environment, are likely to be more dispassionate in interpreting and applying the law?

A. Yes! And herein lies the problem! Law is not a static corpus of abstract normative principles to be applied mechanistically in order to arrive at objectively valid solutions to resolve problems of human intercourse. Law is the normative outcome of the cut and thrust of human interactions based on collectively determined or generally accepted social values and subject to a process of continuing adjustment to its environment of control. Consequently, persons interpreting and applying the law should be attuned to the relevant dynamics of social interaction, which determine the quality and intensity of human intercourse, and the values conditioning such dynamics. And by this is meant the values that make us cry; the values that make us laugh; the values that make us happy or sad; the values that make us responsible, productive, creative, caring, proud people. In short, the values that condition our uniqueness as a people. In the premises, to be far removed from the immediate environment of social interaction to which the law applies would facilitate a dispassionate analysis of human events and judicially objective decisions but only to the detriment of desirable social behaviour and social cohesion.

Q. Are the Judges of the CCJ vulnerable to political manipulation?

A. It is generally accepted in our societies that independence of the judiciary is a vital and essential ingredient of the rule of law, a basic principle of social engineering in CARICOM member states. To ensure independence of the members of the Court, appropriate provisions have been elaborated in the Agreement Establishing the CCJ to provide for credible institutional arrangements.

First, unlike the situation with the European Court of Justice, where Judges are appointed by the Ministers of Government, Judges of the CCJ are appointed by a Regional Judicial and Legal Services Commission, whose composition should offer a reasonable degree of comfort to the Court's detractors. Its eleven members include:

• the Court President, who is the Chairman of the Commission;

• two persons appointed jointly by the Organisation of the Commonwealth Bar Association and the Organisation of Eastern Caribbean States Bar Association;

• one chairman of the Judicial & Legal Service Commission of a Contracting Party;

• one chairman of the Public Service Commission of a Contracting Party;

• two persons from civil society nominated jointly by the Secretary General of the Community and the Director-General of the OECS;

• two distinguished jurists nominated jointly by the Dean of the Faculty of Law of the University of the West Indies, the Deans of the Faculty of Law of any of the Contracting Parties and the Chairman of the Council of Legal Education; and

• two persons nominated jointly by the Bar or Law Associations of the Contracting Parties.

Provisions of the Agreement also address the security of tenure of Judges. Removal of Judges from office requires an affirmative recommendation of a tribunal established for the purpose. The President of the Court is appointed by the Heads of Government of participating States on the recommendation of the Commission and may be removed for cause only on the recommendation of the Commission acting on the advice of a tribunal established for the purpose. The Judges of the European Court of Justice, as indicated above, and the European Court of First Instance, are appointed by the Ministers of Government and those of the Andean Court of Justice are elected by states. In effect, the Caribbean Community is the only integration movement whose Judges are not directly appointed or elected by states!

Q. But are not the Judges of the Court paid by Governments which can exert decisive informal pressure on them to deliver self-serving judgments?

A. In order to pre-empt this eventuality, the Heads of Government have mandated the Ministers of Finance to provide funding for the recurrent expenses of the Court for the first five years of its operation. In this connection, it should be noted that significant capital expenses have been assumed by the host Government and that the building for the seat of the CCJ is being provided by Trinidad and Tobago.

During this initial period, a Trust Fund has been established and capitalised in the sum of US$100 million, so as to enable the recurrent expenditure of the Court to be financed by income from the fund. The fund is administered by the Caribbean Development Bank. In this way, the recurrent expenditure of the Court, including the remuneration of the Judges is not dependent on the capricious disposition of governments.

Contributions to the Trust Fund should not be a cause of anxiety. Extra-regional interests have genuine, legitimate concerns about the functioning of the CCJ. Remember, that as a court of last resort, the CCJ will be pronouncing on the operations of international criminal cartels whose activities impact adversely on the economies of third states. The CARICOM Secretariat has had indications of interest in contributing to the fund from sections of the international donor community.

Most importantly, the political directorate has agreed that non-payment of contributions to the budget of the Court would result in the denial of access to its services by defaulting member governments. Agreement by member states of the community on such a sanction must be seen as a very significant development in the history of the economic integration movement where, historically, sanctions tended to be conspicuous by their absence!

Q. Is there any plausible assurance that the judicial pronouncements from the CCJ will be of the desired quality?

A. In this connection, it must be borne in mind that the selection of Judges is not confined to the Caribbean region. Candidates may come from any territory of the Commonwealth. There are already on the Bench a British Judge and a Dutch Judge. And having cast the net so widely, there is a plausible assurance that Judges of the required expertise and legal erudition will come forward for appointment. In any event, critics from the legal community expressing misgivings about the quality of Judges should not forget that, in the final analysis, the quality of judicial determinations is not unrelated to the quality of submissions by counsel.

Indeed, the record would confirm that behind any sound judicial pronouncement in the region, and there are numerous of them, the submissions of counsel were very well researched, informed and persuasive in respect of both issues of law and fact. Finally, some comfort must be taken from the fact that most appeals to the Privy Council are dismissed, underscoring the quality of judicial determinations of local Judges.

Q. Did the renewed interest in the establishment of the Caribbean Court of Justice have anything to do with the decision of the Privy Council in "Pratt and Morgan"?

A. The unfortunate coincidence of those events is a matter of grave concern. The answer, however, must be in the negative and should be placed in historical perspective. What is often forgotten by detractors of the Court is that the revived interest in the Caribbean Court of Justice, as it is now called, had its origin in the Report of the West Indian Commission (1992) which predated the landmark decision of the Privy Council in Pratt and Morgan (1993) by one year.

Indeed, the recommendation for the establishment of a Caribbean Supreme Court in substitution for the Privy Council and vested with original jurisdiction concerning the interpretation and application of the Treaty of Chaguaramas, even though one of the most seminal determinations of the West Indian Commission, was anticipated twenty years before by the Representative Committee of OCCBA set up to examine the establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council. In short, if Pratt and Morgan was a watershed in Caribbean jurisprudence, the West Indian Commission's recommendation for a Caribbean Supreme Court was not an innovation in Caribbean judicial institutional development and is largely unrelated to popular perceptions of required sanctions for socially deviant behaviour.

In point of fact, one of the most compelling arguments for the establishment of the Caribbean Court of Justice is the need to have an authoritative, regional institution to interpret and apply the Treaty, as amended, in order to create the CARICOM Single Market and Economy. But, unfortunately, the original jurisdiction of the Caribbean Court of Justice and its importance for the success of the CSME is little understood and even less appreciated by many members of the legal fraternity at the present time.

Q. Why does the Agreement Establishing the Caribbean Court of Justice provide for withdrawal from the regime, thereby conveying a perception of political convenience and impermanence?

A. It is trite international law that treaties must be observed in good faith (pacta sunt servanda). However, in exceptional cases, such as a fundamental change of circumstances (rebus sic stantibus), a state may, as an attribute of sovereignty and in the national interest, withdraw from a treaty regime irrespective of the provisions of the relevant instrument, subject, of course, to the engagement of any international responsibility that may be involved. As such, provisions inhibiting withdrawal from an international regime are of marginal juridical significance. And the same observations hold good for the Agreement Establishing the Seat of the Caribbean Court of Justice.

Q. Wouldn’t the retention of appeals to the Privy Council inspire foreign investor confidence, especially in the case of large investments, thereby facilitating a better investment climate?

A. There can be no doubt that credibility of the judicial sector reinforces investor confidence and promotes foreign direct investment. Undoubtedly, the Judicial Committee of the Privy Council has an international reputation for sound judgments and does inspire investor confidence. However, the stark reality is that the process of judicial settlement involving the Privy Council is too tardy to offer much comfort to the foreign investor. In fact, foreign investors with large sums to invest opt for self-contained instruments which include disputes settlement provisions tending to favour the ICSID route, that is the International Convention for the Settlement of Investment Disputes sponsored by the International Bank for Reconstruction and Development (IBRD).

Q. There are obviously many aspects of the CCJ to be understood. How are the people of the Region expected to learn and understand the facts surrounding the CCJ, the benefits that can come with its establishment, and how to access those benefits?

A. The communication component is certainly a very important consideration, and one that has been given deserved emphasis. That is why, prior to the inauguration of the Court in April 2005, there was a region-wide Public Education Programme, designed to foster understanding in relation to the CCJ, the reasons for its establishment, the rules which will guide it, and especially, implications relating to its Original Jurisdiction and the critical relationship to the CSME. This public education effort was spearheaded at the national level, by national debate and dialogue, in order to adequately represent various interests, and address any questions or concerns arising within the national context.

At the regional level, there have already been very valid concerns raised in relation to the CCJ, especially with respect to its structure, funding and the independence of its officers. The Court believes that opportunity must be afforded for the questions to be asked and answered, and is in the process of organising educational and informational visits to the territories of the various Contracting Parties. There has already been one such visit to Jamaica, in October 2005. The people of the Caribbean are, therefore, being encouraged to air their views, no matter where they are, through the various media, including the Internet, and in different fora, such as town meetings, and to ask the probing questions of persons who can answer them.

The views of the people will naturally be instructive in helping the framers to further settle some aspects of the Court's establishment, and to create the structure which is both progressive and comfortable for the people of the region.

The idea of a Caribbean Court is not new. It has been thirty years in incubation. Now that its time has come - this critical investment in our future viability - the real concern must be how to get it right.