This evening marks a momentous occasion in Caribbean legal history. We are gathered here to take a giant step towards the completion of psychological, political and judicial independence.
The Agreement establishing the Caribbean Court of Justice (CCJ) is now ready for signature by Heads of Government of the Caribbean Community. It is in the nature of a Treaty.
As Chairman of the Preparatory Committee to oversee the establishment of the Caribbean Court of Justice, and on behalf of my colleagues, the Attorneys-General fo Jamaica, Trinidad and Tobago, Guyana, Saint Lucia and St Kitts and Nevis, I am particularly delighted to welcome you all to witness our Heads of Government signify their countries’ commitment to the ultimate inauguration of the CCJ.
We have reached this landmark after thirty-one years of debate, although research suggests that the idea of a final indigenous Court of Appeal for this region had its genesis as long ago as 1947 at a meeting of West Indian Governors here in Barbados.
The Agreement of the Heads of Government in Grenada in 1989 to establish a Court to replace the JCPC in London predated by three years the clear and unambiguous recommendation of the West Indian Commission in its Report Time for Action. The Commission had observed that:
“The case for the CARICOM SUPREME COURT, with both a general appellate jurisdiction and an original one, is now overwhelming – indeed it is fundamental to the process of integration itself.”
The road to this evening’s signing ceremony has been long, arduous, contentious, sometimes acrimonious. We even met two enemies of progress on the way. Cynicism and negativism. But always, it has been exciting, intellectually challenging and now, enormously satisfying.
When the Preparatory Committee was established in July 1999, one of its key mandates was to develop a programme of public education throughout the Caribbean Community.
I am able to report that that programme has been progressing exceedingly well with invaluable assistance from a dedicated Coordinating Unit in Georgetown. We have been determined that a lack of public awareness, a lack of public understanding and a lack of public involvement in the process should not bedevil the ultimate establishment of the CCJ as had been the experience of the Federation of the West Indies (1958-62).
After all, we would not wish our beloved and distinguished honouree Dr Slinger Francisco to be provoked into ire to write another calypos after the manner of his 1962 classic “Federation”!
Regional Attorneys-General have been driving the consultative process in our respective territories and we have had very informative and rewarding dialogue with members of the civil society and the legal profession.
Between September and November 2000, surveys were conducted in eight CARICOM countries (viz. Antigua and Barbuda, Barbados, Belize, Guyana, Jamaica, Saint Lucia, Suriname and Trinidad and Tobago) to determine the levels of public awareness and support for the Court. The average level of public awareness of the CCJ is 72 % and overall sentiment in favour of the Court is approximately 67 %. However, there is still work to be done in Jamaica and Suriname which are well below the averages.
Our work across the region has highlighted two major concerns of Caribbean people.
First our people earnestly desire that judicial appointments be insulated from possible political influence. They jealously value the independence of the judiciary. They realise that it is a fragile bastion upon which the maintenance of a just and free society so largely depends.
The Legal Affairs Committee of CARICOM has endeavoured to meet this concern. All of the Judges of the Court will be appointed by a broad-based Regional Judicial and Legal Services Commission – except for the President. He/she will be appointed by a majority vote of the Heads of Contracting Parties on the recommendation of the Services Commission.
It was not deemed prudent that the Heads of Contracting Parties should be denuded of their status and authority and reduced to mere political eunuchs. Neither could we, in the 21st Century, support a notion that implicitly we have greater confidence in the British Prime Minister who recommends the appointment of the judges to the JCPC than we have in our own Caribbean political leaders.
The second concern of the people of the region is that the financing of the CCJ be secured on a sustainable basis. Heads of Government have listened and have instructed that funding be secured for a five-year period before inauguration of the Court.
I can report that the various organs of CARICOM have determined that the sum of US$21 million represents the full cost of operating the Court for 5 years and that it is the responsibility of Member States of the Community to finance the Court in the first instance. However, a Trust Fund is being established within the Caribbean Development Bank and any contributions from external sources will be deposited to that Trust Fund.
Heads of Government are determined, and the people of the Caribbean must be assured, that the traditional fiscal disequilibrium that has affected regional institutions will not be visited upon the CCJ.
I am also able to report that the Government of Trinidad and Tobago has generously provided a building for the Seat of the Court. Renovations are currently in progress and I am advised, in writing, that the Headquarters of the CCJ will be ready by April 2001.
Both the Legal Affairs Committee and the Preparatory Committee have worked very hard over the past 5 years not only to finalise the Agreement for signature but also to draft other essential Instruments. Thus, in addition to the Agreement, we have prepared:
- The Draft Agreement establishing the Seat of the Court in Trinidad and Tobago;
- The Draft Regulations of the Regional Judicial and Legal Services Commission;
- The Draft Protocol on the Privileges and Immunities of the CCJ and the Regional Judicial and Legal Services Commission;
- The Draft Code of Judicial Conduct;
- The Draft Treaty Articles in respect of the Original Jurisdiction of the CCJ;
- The Draft Rules of Court (Appellate Jurisdiction);
- A Draft Bill to implement the Agreement.
At our next meeting the Legal Affairs Committee will complete the final draft of the Rules of Court (Original Jurisdiction).
The CCJ will be an unique adjudicatory institution. In its original jurisdiction, it will discharge the functions of an international tribunal applying rules of international law in respect of the interpretation and application of the Treaty of Chaguaramas as amended by the nine Protocols which make way for the creation of the Single Market and Economy.
In its appellate jurisdiction, the Court will hear and determine appeals in both civil and criminal matters from courts of Contracting Parties.
The time has truly come for the CCJ. Continuation of appeals to the JCPC is:
- Inconsistent with the full attainment of political sovereignty and independence;
- An inhibiting factor in the development of an indigenous jurisprudence;
- Restrictive of the development of the fullest potential of the judges of the region;
- Unduly restrictive of access to justice by Caribbean litigants.
Even more to the point, having regard to the impending creation of the Single Market and Economy, in the words of Lord Woolf in Barbados last March, the Lord Chief Justice of England, “the CCJ will be central to the regional integration process”. Indeed, when Heads of Government signed Protocol IX in St Kitts last March, they agreed to recognise as compulsory, the Original Jurisdiction of the Court.
In the meantime, while we loiter on the doorsteps of JCPC in London, our existing highest court continues to twist and turn our jurisprudence every few months in a way that should offend us as Caribbean people as much as it has recently offended Lord Hoffman who warned that the rule of law itself will be damaged and there will be no stability in the administration of justice in the Caribbean” if judges of the JCPC continually depart from previous decisions solely because they have “a doctrinal disposition to come out differently”.
In establishing the CCJ Caribbean people will once again demonstrate that self-confidence which led to the creation of the University of the West Indies, the Caribbean Examinations Council, the Faculty of Law of the UWI and the Law Schools.
Your Excellencies, Heads of Government, Distinguished Ladies and Gentlemen, my colleagues and I have every confidence that the CCJ will evolve rules of law not only as a logical and historical sequence but also as a response to social and economic needs and pressures.
I am grateful for the privilege of this address and have the greatest pleasure in commending to heads of Government the Agreement Establishing the CCJ for your several signatures.
The Caribbean Court of Justice is an historic necessity.
