CCJ President disappointed some Caricom countries still using Privy Council
…says this impacts full development of Caribbean jurisprudence
The fact remains that almost two decades after the Caribbean Court of Justice (CCJ) was inaugurated, only four of the 15 Member States of the Caribbean Community (Caricom) – Barbados, Belize, Dominica, and Guyana – have enacted laws to make the Trinidad-based court their final court of appeal. The other countries, including the most populous ones – Trinidad and Tobago and Jamaica – continue to have Her Majesty’s Privy Council decide their final appeals.
These two countries were also at the forefront of the establishment of the regional court.
While addressing the Guyana Bar Association’s Annual Bar Dinner on Saturday, President of the CCJ Justice Adrian Saunders said that Guyana wasting no time in acceding to the court’s appellate jurisdiction is a commendable demonstration of faith in the region’s ability to establish a court and produce Judges that are equal to the task. He, however, expressed disappointment that the other countries are yet to accept the CCJ as their court of last resort.
Justice Saunders said himself and every CCJ Judge are bombarded with questions from every regional journalist about those countries that have not yet “demonstrated the same faith, or that, for whatever other reason, have not yet acceded to our appellate jurisdiction”.
Among the questions asked by journalists, he disclosed, are: “How do you feel about that, they would ask? Why do the most populous Caricom states still send their final appeals to London? Do you regard that as a snub? Does that hurt the image of the court?”
Addressing this issue, the CCJ President underscored that, “Whether a State chooses to continue having Her Majesty’s Privy Council adjudicate its final appeals is of course a fundamental constitutional question for that Government and its people. It is disappointing, however, that any Caribbean country should renege on its treaty responsibilities preferring instead to have British Judges continue to interpret its Constitution and laws”.
While emphasising that this is a choice a country makes, Justice Saunders noted that it is a choice that has “consequences”. He explained that one of the consequences is that this choice deprives people of ordinary means of the ability to avail themselves of a level of access to justice that they could and should enjoy. Another unfortunate consequence, the esteemed Judge highlighted, is that it impacts negatively on the full development of the Caribbean jurisprudence.
Single appellate tier
According to Justice Saunders, the Governments of Guyana, Barbados, Belize, and Dominica “made a wise decision” in accepting the CCJ as their final court of appeal. Last month, the Government of Saint Lucia signalled its intention to become the fifth Caricom country to have full membership with the CCJ. Its acting Governor General, Cyril Errol Charles, had announced that steps will be taken this year toward breaking ties with the British Privy Council. The Governments of Grenada and Antigua and Barbuda had taken similar steps in the past to sign onto the CCJ.
Speaking on this, Justice Saunders said, “…it is only fair also to record the courage, the principle, the conviction of the present Governments and Parliaments of Antigua and Barbuda and especially Grenada. The Independence constitutional arrangements with which these latter two states have been saddled have effectively frustrated their deep desire to do that which I believe is proper and noble”. The CCJ’s President is of the view that the justice system in Guyana did not “flourish” during the years the country had a single appellate tier.
“I think that, and I say this with great respect, during the years that Guyana had a single appellate tier, the justice system in this country did not flourish as well as it could otherwise have. Unsurprisingly, by the time the CCJ was launched in 2005, the Guyana judicial system had not kept abreast of all the reform initiatives that had swept through much of the region in the ‘90s and early part of this century,” he pointed out. But fast forward to two decades later, he applauded Guyana for having a justice system that is now dynamic, responsive, and innovative.
He added that Guyana’s justice system is being led by two “forward-looking and progressive Judges” in the persons of the acting Chancellor of the Judiciary Justice Yonette Cummings-Edwards and the acting Chief Justice Roxane George, SC.
Commenting on the advancements made in the country’s justice system, he outlined, “The length of time the cases that reach us have been in the system has grown considerably shorter. So far as I can tell, the judgements are being delivered in a far more timely fashion. Many cases are disposed of via mediation as they should be. You have a sexual offences court and you also have or will soon have juvenile and drug treatment courts; not long ago new civil procedure rules were introduced under [former] acting Chancellor Carl Singh, and you have embraced the marriage of modern information and communication technology to case management. It is a fact that over the last ten or so years we have been witnessing a series of steady reforms in the administration of justice in this country. The trajectory is certainly trending in an excellent direction”.
In a healthy democracy, Justice Saunders explained that the citizenry must have access to a range of courts and judicial officers, mostly Judges, and Magistrates, to resolve their disputes in a civilised fashion. He explained that an appeal from the Court of Appeal’s judgement to a second appellate tier is warranted and pursued invariably in the hard cases; in cases where the law might be uncertain; where interpretation of the law might admit to two or more rational answers; or in the case where prevailing interpretation of the law is possibly out of step with the ongoing march of an advancing society. The CCJ President further explained that in a healthy democracy, about 10 per cent – 15 per cent of the judgements of the Court of Appeal are appealed to the apex court and most of these cases might fall into this category where the law is in need of clarification by an apex court or the common law needs to keep pace with the society.
But if access to a second-tier appellate court is compromised, he warned that a country’s jurisprudence is harmed because uncertainties in the law never get authoritatively resolved.
“The country’s jurisprudence is stultified and the gap between law and society widens. The point is that the final court of appeal is best placed to clarify the law and, interstitially, in partnership with the legislature, to close the gap between law and society,” Justice Saunders added.
The CCJ was inaugurated in Port of Spain, Trinidad and Tobago, on April 16, 2005, and presently has a Bench of seven Judges presided over by CCJ President Justice Saunders.
The CCJ has an Original and an Appellate Jurisdiction and is effectively, therefore, two courts in one. In its Original Jurisdiction, it is an international court with exclusive jurisdiction to interpret and apply the rules set out in the Revised Treaty of Chaguaramas (RTC) and to decide disputes arising under it. The RTC established the Caricom and the Caricom Single Market and Economy (CSME). In its Original Jurisdiction, the CCJ is critical to the CSME and all 12 Member States which belong to the CSME (including their citizens, businesses, and governments) can access the Court’s Original Jurisdiction to protect their rights under the RTC.
In its Appellate Jurisdiction, the CCJ is the final court of appeal for criminal and civil matters for Guyana, Barbados, Belize, and Dominica which have altered their Constitutions to enable the CCJ to perform that role. However, by signing and ratifying the Agreement Establishing the Caribbean Court of Justice, Member States of Caricom have demonstrated a commitment to making the CCJ their final court of appeal. The CCJ said it is the realisation of a vision of our ancestors, an expression of independence, and a signal of the region’s coming of age. (G1)