CCJ v Privy Council

The Caribbean Court of Justice (CCJ) was first proposed at the sixth Caribbean Heads
of Government Conference in Jamaica in 1970. It was said to be a critical component
of the Caribbean Single Market and Economy, a Caribbean response to the rapid
process of globalization. The CCJ was designed as a court with dual (both appellate
and original) jurisdiction. In its appellate jurisdiction the court will operate as the
highest court to which appeals can be taken from the Caribbean as is currently the
case in Barbados, Guyana, Belize, St. Lucia, and Dominica and the capacity in which
the Privy Council now functions for other Caribbean countries). In its original
jurisdiction the CCJ will have exclusive jurisdiction to interpret the Revised Treaty of
Chaguaramas and will be the sole arbitrator as it relates to disputes between
participating states, i.e. countries governed by the treaty. Note that in 2018 both
Antigua and Barbuda and Grenada had referenda on the CCJ, and both countries
voted not to accept the CCJ as their final appellate court.
Arguments for the Privy Council/Against the CCJ
i. Good track record - Quality judgments; wealth of jurisprudence (it has
made decisions in many cases and has thus developed a vast body of legal
reasoning)
ii. History - In existence for many years; the court was institutionalized in 1833
iii. Objective an impartial- the court is far removed from the Caribbean and so
its decisions are impartial and made solely on the basis of the law.
iv. Risk of political appointment of CCJ judges - Small size of Caribbean,
friendship and kinship ties- The judges of the Privy Council on the other
hand have no such ties with persons in the Caribbean.
v. Free to litigants - There is a group in England called the London Group
whose members work closely with the Independent Jamaica Council for
Human Rights. This group includes persons such as Edward Fitzgerald Q.C.
and the members are always willing to represent defendants in death
penalty cases free of cost.
vi. Human rights oriented - England abolished the death penalty in the 1950s.
In fact all of Europe is has been declared a death penalty free zone.
Europe’s foreign policy incorporates recommendations for the abolition of
the death penalty.
vii. Well trained; knowledgeable, excellent judges.
viii. CCJ will be a financial burden on Caribbean governments - We have to
repay the loan borrowed for setting up the court
ix. Poor state of local courts - Dilapidated buildings, poor infrastructure, slow-
some argue that the money spent on the CCJ would be better spent fixing
the problems associated with our local courts.
x. Foreign investors trust the Privy Council
xi. Issue of time - It has been argued that the CCJ has not been properly
debated and we are not ready for it as a final court. There is the suggestion
that we should first try the CCJ as a tier below the Privy Council to see
whether it works.
xii. The CCJ could become embroiled in political issues which could weaken its
authority.
Arguments against the Privy Council/for the CCJ
i. Distance- Privy Council is far from the Caribbean therefore access to justice
is costly.
ii. Because of the distance from the Caribbean Privy Council judges are
insensitive to Caribbean conditions; they do not understand the culture,
Caribbean realities, jargon, mind set of Caribbean people, context of local
crimes etc. They are from confined social circumstances, and they admit
that they are conservative in their judgments because they know very little
about the Caribbean. Lord Hoffman, judge of the Privy Council, visited
Trinidad for the first time in 2004 and Jamaica for the first time in 2009. He
stated that he is not qualified to deal with our cases because he does not
understand our culture.
iii. Privy Council is not often used because ordinary people cannot afford it. It
is mostly used for death penalty and commercial cases. One writer argued
that only the richest (companies) and the wickedest (death penalty cases)
access the Privy Council. The Privy Council hears 10-15 appeals per year
from Jamaica, 15-20 from Trinidad and very few or none from other
territories.
iv. Retention of the Privy Council is incompatible with sovereignty,
independence, decolonization and self-determination. As independent and
sovereign countries we should have our own final court.
v. CCJ is needed for the Caribbean Single Market and Economy (CSME) -
economic predictability is dependent on the stability of the legal regime
uniform laws are necessary for integration; rulings of the CCJ will serve as
binding precedents. The original jurisdiction of the court is needed for
the proper functioning of the CSME.
vi. The CCJ will allow the Caribbean to develop its own jurisprudence
and the confidence to make our own final decisions. Caribbean judges are
very cautious at present because they know that their judgments can be
easily overruled.
vii. CCJ will operate as an itinerant court - The judges will move across the
Caribbean and sit in different countries to hear cases from those respective
countries.
viii. Psychological considerations – The Privy Council is made up of judges
who are historically considered superior-psychological remnant of
colonialism; breaking free of all colonial ties will allow us to develop more
confidence in ourselves to enable us to make our own final decisions. The
Privy Council also wants to get rid of appeals from the Caribbean. Lord
Phillips (head of the UK Supreme Court) said that too much of the court’s
time (about 50%) is spent dealing with Caribbean cases. He said that there
is the need to restructure the arrangements so that the UK Court of Appeal
(which is lower than the Privy Council) hears some of the appeals from the
Caribbean. This would be a further insult to our Caribbean Court of Appeal
judges who already feel insulted by the fact of their judgments being
reconsidered by the Privy Council.
ix. Visa requirements - Situations can arise and have in fact arisen where a
person has a case before the Privy Council and wants to represent himself
but cannot appear because he does not have a visa