A Caribbean Court of Justice
Editorial
Since the sixties, after Independence had been achieved by the four main Commonwealth Caribbean countries, a call had been raised in legal and political circles for a Caribbean Court of Appeal to replace the Judicial Committee of the Privy Council. This was seen as a fitting complement to our new status. After Guyana became a republic in l970 and the right of appeal to the Privy Council was terminated the call was renewed in Guyana. Over thirty years later the court has not been set up though it was strongly supported by the West Indian Commission in its well known report, Time for Action. However, an agreement has been prepared for signature by the member states. Signing was deferred at the last two heads of government meetings to give Jamaica more time for internal consultation but it is hoped that it can take place at the next meeting in June. In the meantime, Jamaica's National Committee for the establishment of the court will soon consider approving a programme pursuant to which information about the court will be given out and any Jamaican who wishes will have the opportunity to comment on its proposed establishment. Articles ll and l2 in the Annex to the Treaty of Chaguaramas provide for arbitration between the States if disputes arise. However, these articles have never been used. Moreover, the nine protocols that revise the treaty and establish the Caricom Single Market and Economy now create extensive rights and obligations for the States and through them for citizens and investors. The consensus is that investors will want uniformity in the interpretation of the treaty and the certainty that court judgments give and will not wish to rely on arbitral procedures and awards. The proposed Caribbean Court of Justice will therefore have an original jurisdiction to settle all disputes concerning the interpretation and application of the treaty and will also function as the final appellate court for civil and criminal appeals from the jurisdiction of States Parties. Membership will be open to all Caricom states but the agreement provides that it will enter into force on the deposit of three instruments of ratification. The president of the court will be appointed by the heads of government of the participating states on the recommendation of a Regional Judicial and Legal Services Commission which will be established. The other nine judges will be appointed by that commission. Only State Parties may, without special leave, appear in proceedings before the court in the exercise of its original jurisdiction though private entities may appear with special leave. Any litigant can approach the court in its appellate jurisdiction. The expenses of the court will be a charge on the consolidated funds of the participating states. The Legal Affairs Committee has however approved the establishment of a trust fund and efforts will be made to raise some US$25 million from donors, the income from which would be used to cover the recurrent expenditure of the court. The headquarters will be located in Trinidad and Tobago. Those who support a Caribbean court have always argued that it will minimise the possibility of political interference in judicial decisions. For example, they say, it will be unlikely or implausible for a senior government official in one state to approach a judge from another state in an effort to influence his decision. It has been argued too, most recently by Chief Justice Michael de La Bastide of Trinidad and Tobago, that many of the decisions now made by the Privy Council are policy decisions and "it is preferable to have those decisions made by persons who are familiar with the society in which they live". Moreover, he argued, for judges to be accountable they should live in the society for which they make decisions. "In this way, not only are they subject to criticisms which can affect them in a personal way, but they have to live with the consequence of those decisions. They can also assess for themselves how those decisions impact on the society". It is anachronistic and undignified that more than three decades after Independence some Caribbean states should still be approaching a foreign court for the final determination of their legal disputes. And indeed there is good evidence that that court no longer welcomes such appeals. Senior Law Lord and Head of the Privy Council Lord Nicolas Browne-Wilkinson said last year in an interview with The Lawyer that "the ultimate court of appeal of a state should be in that state and staffed by citizens of it and not outsiders". He went on to say "I should think 25 per cent of the Law Lords' time is taken up with Caribbean murders and crime decisions which is quite a fantastic number". He repeated the sentiments in a recent interview with the Times in which he lamented the court's workload. That is surely as broad a hint as one can expect that this appeal procedure should be terminated as soon as possible. One must hope that Prime Minister James Patterson of Jamaica will feel able, after further consultation and the process now underway there, to sign the agreement in June. Then, if Guyana, Trinidad and Tobago and Barbados ratify the agreement in their respective parliaments the court can be set up and start to function.
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