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THE MAGISTRACY AND THE CARIBBEAN COURT OF JUSTICE:  CHALLENGES, PROSPECTS AND THE OPPORTUNITIES FOR JUDICIAL ENHANCEMENT : ADDRESS DELIVERED BY DR. ABDULAI O. CONTEH, CHIEF JUSTICE OF BELIZE, AT THE CONFERENCE OF CHIEF MAGISTRATES OF MEMBER STATES OF THE CARIBBEAN COMMUNITY, 25 JANUARY 2003, GEORGETOWN, GUYANA

May I first acknowledge with appreciation the opportunity to say a few words on this important occasion. My appreciation goes particularly to Dr. Edwin Carrington, the indefatigable Secretary General of CARICOM who has over the years, tirelessly exerted himself in pursuit of regional integration, cooperation and advancement.

This occasion is but yet another manifestation of this; for under his watch the project for which we meet here today will hopefully now come to fruition.

Special words of appreciation also go to Mr. Duke Pollard, the Legal Consultant at CARICOM, and Mr. Sheldon McDonald, the Project Coordinator of the Caribbean Court of Justice and indeed to everyone in the Project Coordination Unit of the Secretariat. The vision, confidence and commitment of all these individuals, and very many others, have sustained and nurtured, over the years, the concept and idea of the establishment of the Caribbean Court of Justice.

The idea of the Court itself has been the subject of debate across the Region for a very long time. It is, I think, fair to say that no other comparable international court, not even the historic Permanent Court of International Justice (P.C.I.J.), the precursor of the present International Court of Justice at the Hague (I.C.J.) had such a long period of gestation as the Caribbean Court of Justice.

To be sure, the International Criminal Court established by the Treaty of Rome in 1998, was only finally established after some prolonged debate and discussion. But the diplomatic consultation and conferences that eventually resulted in its establishment were not as long drawn out as those that attended the establishment of the Caribbean Court of Justice.

The period of incubation of the idea of the Court and the conclusion of the final agreement to establish it should not, perhaps, be surprising. This is because of the unique and perhaps inimitable character, composition, functions and powers of the Court as finally established.

The Resolution which was tabled at the Sixth Meeting of the Heads of Government of the Caribbean Community in Kingston, Jamaica in 1970, is historically regarded as the seed from which the concept and idea of Caribbean Court of Justice has come to fruition. So in all, almost a generation, some thirty odd years, from 1970 to 14 February 2001, had to elapse before this historic event, when the Agreement Establishing the Caribbean Court of Justice, was finally concluded in St. Michaels, Barbados.

It must be remembered, however, that as originally conceived, the Court was essentially going to be a pan-Commonwealth Caribbean final Court of Appeal for individual member states. This was to make it a purely domestic or municipal court, albeit, the court of last resort for individual member states.

Thus conceived, I venture to think that the Court would have been no more an instrument or agency of regional cooperation or integration than the present role of Her Majesty’s Privy Council, which only hears appeals as the Court of final resort from members who still have recourse to it. But the effluxion of time and the maturation of the idea of the Court have today, given birth to a unique institution that, I dare say, may in time, come to be one of the prime forces of regional integration and cooperation.

It is to be remembered that the Privy Council as the present final Court of Appeal of most member states of CARICOM, has little or no contribution to make towards the laudable and necessary goals of regional integration. It is of course, primarily the final court of appeal for the individual states that go to it and its judgments therefore have a binding force. But it is really no more than the apex of the structure of the courts of these states.

The Caribbean Court of Justice, on the other hand, unlike the Privy Council, is the result of a deliberate and conscious act, by treaty, of the member states of CARICOM; and whereas, the Judicial Committee Act 1833 put the Judicial Committee of the Privy Council on a statutory footing as a court of law as distinct from its formal attachment to a United Kingdom Department, the Privy Council (see Viscount Radcliffee in Ibralalebb v The Queen (1964) AC 900 at 919), the Caribbean Court of Justice will be an indispensable institution for regional integration and development.

This fact is clearly recognized when significantly, in establishing the Court, the parties expressly state in the third preambular paragraph of the Agreement that they are “Aware that the establishment of the Court is a further step in the deepening of the regional integration process.” It is above all this faculty and characteristic of the Court that sets it apart from the present arrangements for the final determination of appeals in the courts of member states of CARICOM.

It is this faculty also that unquestionably imparts to the Courts its unique characteristics: for it is, unlike any other comparable regional Court, both a municipal Court and an international Court at one and the same time This characteristic is not without challenges for the Court when it gets underway. And these challenges would either enhance or diminish the prospects of the Court either as the ultimate Court of Appeal from the individual jurisdictions of member states, or as an effective regional Court in the context of the integration efforts of CARICOM and the goals and aspirations of the Single Market Economy (CSME).

This distinctive characteristic of the Caribbean Court of Justice is reflected in Part II and Part III of the Agreement establishing the Court. Under Part II, the original jurisdiction of the Court, exclusive jurisdiction is vested in the Court in hearing disputes arising from the interpretation and application of the Revised Treaty of Chauguramas under the CARICOM Single Market Economy (CSME).

The Court is also empowered to render Advisory Opinions in this stream of its jurisdiction. There is, in my view, nothing exceptional in this aspect of the Court. It is in this respect, comparable to other regional integration arrangements which have set up regional courts to oversee the harmonious interpretation and application of the respective treaties and agreements relating to them. The Court of Justice of the European Communities; the Court of Justice of the Andean Community; the Judicial Tribunal of the Economic Community of West African States; and the Court of Justice of the Common Market for Eastern and Southern Africa, are examples that readily come to mind.

However, it is in relation to the Appellate jurisdiction of the Court as provided for in Part III of the Agreement establishing it that much of the contentions and reservations that have attended its establishment have arisen.  This Part creates the second stream of the jurisdiction of the Court by making it the Court of last resort from the national courts of member states.  It is this aspect of judicial or rather jurisdictional devolution that has beclouded over the years the efforts and progress towards the establishment of the Caribbean Court of Justice.

This issue was manifestly exacerbated by the emotive issue of the death penalty and the expansive (or is it generous and purposive interpretation?) given by the Judicial Committee of the Privy Council in relation to some human rights provisions in Commonwealth Caribbean Constitutions in the Pratt and Morgan (1993) line of cases.

The possibility of adjudication by the Caribbean Court of Justice as the final court of appeal in domestic matters from member states came to be rather unfairly caricatured as a “hanging court” or the “Calypso Court”. This is as unfair as it is meretricious, and casts a slur on the collective judicial expertise, experience and integrity of the jurists in the Region. For the empirical evidence shows that the respective courts in CARICOM member states have, over the years, been astute and courageous defenders of human rights and the Constitutional provisions of member states.

In point of fact, the Region has produced a number of eminent jurists who have provided judicial services beyond the Region, such as Judge Mohamed Shahabudeen from Guyana, in the International Court of Justice at the Hague; an outstanding Chief Justice of the Federal Court of Canada, Chief Justice Julius Isaac of Grenada; two eminent serving members of the International Tribunal for the former Yugoslavia, Judge Patrick Robinson of Jamaica and Judge Mohamed Shahabudeen (already mentioned, formerly of the I.C.J.); and two judges of the Law of the Sea Tribunal, Judge Dolliver Nelson of Grenada and the late Judge Edward Laing of Belize.

Therefore, availability of judicial expertise and integrity would not be an insurmountable challenge in the way of the functioning and operation of the Caribbean Court of Justice. Also, a look at the Bench, and the ranks of the various Bar and Law Associations of member states and the Faculty of Law at the University of the West Indies, would easily reveal that there is available the necessary human resources to man the Bench of the Caribbean Court of Justice.

The conferral of the appellate jurisdiction on the Caribbean Court of Justice, thereby making it the final Court of Appeal for member states, within the domestic hierarchy of their legal systems, should be done in conformity with the provisions of their respective Constitutions. Otherwise, there might be challenges which will not only delay the process but these challenges might well find their way to the Privy Council itself for determination. This aspect of the exercise of establishing the Court is more of a challenge to the executive and legislatures of member states than for the judiciary.

An institutional challenge for the Court was the process of appointments of its judges so as to insulate it from unwholesome political or other pressures. The institutional mechanism through the Regional Judicial and Legal Services Commission, set out in the Agreement for the appointment of the President and the judges of the Court should, I am confident, ensure their independence and conduce to their integrity.

Without question, an abiding challenge that will flow from the establishment of the Caribbean Court of Justice will be that of financing it at an appropriate level to ensure that it functions with efficiency, dispatch and the necessary judicial independence and integrity.   But this is not a challenge that is new or unique to the administration of justice, whether in the Region or beyond. Too often the administration of justice, particularly in ensuring adequate financial provisions for the judiciary, does not, it seems, rate very high in the calculations of national treasuries.

It cannot be denied that in the round, the proper administration of justice is, in a material sense, part of the national security operations of a state. For when the Courts become dysfunctional through lack of resources, the tendency is for people to have recourse to more destabilising methods of settling disputes, which before too long, may impact on the social, economic and political welfare of the state.

The blight of judicial systems caused by rich and over-powerful drug barons in some countries is a sobering reminder in this respect. In the case of the Caribbean Court of Justice, the spectre or prospect of under-funding or lack of adequate financial and other resources, would deal a body blow to regional cooperation and integration almost to the point of unravelling the whole process.

Of course, budgetary and financial independence is a necessary pillar for judicial independence and integrity. The five year programmatic budgetary provisions for the Court and the establishment of a Trust Fund to defray the recurrent expenditure of the Court will go a great way to sustain the financial independence and viability of the Court. It is significant, I think, to note that the assessed contributions to be paid my member states towards the costs of the Court shall be charged by law on the Consolidated Fund or public revenues of member states. It is vital for the success of the enterprise of the Court that its financing be put on a sound and sustainable basis.

For Caribbean countries, the creation of the Caribbean Court of Justice is, in my humble view, to see in particular, the wheel of that great movement set in train with the independence of the Indian sub-continent in 1947, come full circle. Even before then the Irish Free State (as Ireland was then known) had in 1933 abolished appeals to the Privy Council. The then English Attorney-General, Sir Thomas Inskip is reported to have warned the Irish Government that they had no right to do so. But the Judicial Committee of the Privy Council itself in Moore v The Attorney General of the Irish Free State (1935) A.C. 484 (P.C.) however, held that they did have the right! The Nationalist Government in South Africa abolished appeals to the Judicial Committee of the Privy Council in 1950 following the abolition of appeals by Canada in 1949.

Thus, since the 1940s as former dominions and colonies decided to set up their own final courts of appeal, rather than rely on the Judicial Committee of the Privy Council, the stream of cases has continued to dry up. Even New Zealand is presently pressing ahead with plans to end appeals to the Privy Council.

Nearer home in the Region, our host country, Guyana, has since 1980, abolished appeals to the Privy Council. It is, I think, fair to say that this has not in any way resulted in a diminution of the vigour or vitality of the Courts here in Guyana or their judgments. Therefore, in my view, the creation of the Caribbean Court of Justice with the remit to function additionally as the final Court of Appeal for CARICOM member states will not and should not result in the diminution of the vigour and vigilance of its judges or their judgments. Rather, I submit, it will mark the full and complete devolution of political and judicial power that is a necessary concomitant of national independence and sovereignty.

The repatriation to the Region of final appellate jurisdiction by its conferment on the Caribbean Court of Justice, will as it were, complete the circle of national independence. This judicial or jurisdictional devolution will come about not by some act of a foreign power (as the grant by the 1933 Act of final appellate jurisdiction to the Privy Council), but by a conscious and deliberate choice by CARICOM member states in the exercise of their sovereign right in conformity with their independence. But like independence itself, this Act is not without challenges, promises and prospects. Indeed, although the doomsayers of yesteryears about the prospect of national independence have not been completely confounded, given the admittedly mixed performance of some national governments since the attainment of independence, the balance is overall in favour of national independence.

To those with understandable reservations or suspicion about the establishment of the Court, the fear or hesitation about national independence has not, in hindsight, been borne out, not has independence resulted in unmitigated disaster for our respective states. There will be difficulties and problems, but they are not insurmountable.

The Caribbean Court of Justice in both its two streams of jurisdiction is a concept, an idea, whose time is an abiding one. There could be no better time to bring it into practicality like the present as the countries in the Region continue to meet the inexorable forces of globalisation while at the same time they must inevitably pursue and intensify efforts at regional cooperation and integration.

At our last meeting of Commonwealth Caribbean Heads of Judiciary Conference in Palm Island, St. Vincent and the Grenadines in June last year, we had the benefit of thorough briefing on the Caribbean Court of Justice by Mr. Duke Pollard and Mr. Sheldon McDonald. I can report that at level of heads of judiciary we wholeheartedly embraced the steps taken to establish the Court and we look forward with confidence to its inauguration and commencement of its operation.

It is in this light therefore that I want to commend the organizers of this Conference intended to inform and sensitise the Magistracy in CARICOM member states about the Court and various issues relating to its operations. The Magistracy in our respective jurisdictions represents the frontline in the administration of justice. It is a vital cog in the due and proper administration of justice.

Therefore information and knowledge of the Court can only extend the possibility of its enlightened reception.   May I however, enter a plea here that a similar exercise be organised for judges and Court administrators. This can only redound to the benefit of wider understanding and acceptability of the Court.

Finally, yes, the establishment of the Caribbean Court of Justice is both a necessity now and a practical reality. This is so, if the integration efforts in the Region are to be harmonious, beneficial and relevant with the goals and objectives of the CARICOM Single Market Economy, and for the full and complete maturation of the legal systems in the Region. These are goals which, I think, it would be difficult to dissent from.

In conclusion, let me say this: no other Region in the world has achieved the level of co-operation and integration that has been achieved in Europe. From the modest and unpretentious Coal and Steel Agreement and the Maastritch Treaty and now Copenhagen, Europe has moved inexorably from the Common Market, the European Economic Community (EEC) and now to the European Union (EU).

Along the way, there have been intense consultations, negotiations and agreements on areas such as agriculture, trade, competition, monetary and fiscal policies (resulting in the introduction and circulation of the Euro as the Union's common monetary denomination in most Member States).And now there are active plans to co-ordinate and homogenise European defence and foreign policies.

Recently, there was even an agreement to enlarge Europe to the extent of its natural geographical borders by the inclusion of 10 more states, thereby obliterating permanently the legacy of the Cold War imprint of the Iron Curtain. All this has been achieved against the historical backdrop that it was Europe which by the Treaty of Westphalia 1648, gave birth to the aggressive and self-aggrandizing modern nation state system.

Evidently, for Europe at least, it seems that the Treaty of Westphalia has come full circle in the European Union!

However, central and fundamental to all this paradigm shifts from the cut-throat competitive nation state system in Europe to the intense and highly integrated and still integrating regional arrangement in Europe, is the role and contributions of the courts as institutions of the European System.

Whether, in the European Court of Human Rights or the Courts of the European Communities, these Courts have made systematic and significant contributions, in both the interpretation and application of the European Convention on Human Rights, and the Treaty and Directives of the European Commission, to the extent that today there is emerging a Europe without frontiers, a Europe that is more socially and economically inter-connected and integrated than was ever thought possible not so long ago.  There is now even talk of a constitution for all of Europe whose preparatory Committee is chaired by the former French President, Volerie Giscard D’estang.  If Europe that gave the rest of the world its polyglot of modern languages can do it – what about the rest of the world?

There is, I dare say, a salutary lesson in all of this for the Member States of CARICOM indeed, the whole Caribbean as a Region. And it is this: that through the systematic and progressive interpretation and application of the Agreement on the Single Market and Economy and other similar agreements, the Caribbean Court of Justice can contribute meaningfully and materially to the necessary processes of regional integration.

It is therefore, in this light that I would like to welcome and see the present conference, but against a wider canvas, namely  “The Judiciary and the Caribbean Court of Justice: Challenges, Prospects and the Opportunities for the Enhancement of Regional Co-operation and integration.” I am convinced and confident that all sectors of the judiciary, the magistracy and the higher courts, all have a role to play in this vital process.

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