In terms of enacting legislation, including importantly, amendment of the Constitution to enable the Caribbean Court of Justice(CCJ) to become the final Court of Appeal for member states of Caricom, Guyana is way out front. Returning from a recent conference of regional Attorneys General at which the matter was discussed, our Attorney General (AG) pointed out that the revised Guyana Constitution already provides for Parliament to “make such provision as it deems fit authorising any court established or to be established, as the final Court of Appeal for the Caribbean to be the final Court of Appeal for Guyana”.

The constitutional provision goes even further than the part of the amendment quoted by the AG as follows: “Where a court referred to (as above) is established and becomes the final Court of Appeal for Guyana such court shall remain the final Court of Appeal for Guyana unless Parliament, by votes of not less than two thirds of all the elected members of the Assembly, makes provision for Guyana to withdraw from such court.”

The CCJ will thus be entrenched in the Guyana constitution.

The AG has pointed out that all that will now be necessary is enabling legislation which he disclosed has already been drafted and would be tabled in the National Assembly shortly (SN October 21).

Our amended constitution thus reflects a political consensus which has so far eluded Trinidad and Tobago (T&T) and Jamaica and perhaps other Caricom states. In T&T the Opposition’s position is that the UNC will only support the constitutional amendment to provide for the CCJ if it forms part of the fundamental reform of the constitution. In Jamaica, where the government apparently can amend the constitution by a simple majority, unlike the case in T&T, the situation is more complex. The opposition Jamaica Labour Party (JLP) sees the CCJ as a “Federal” institution and argues therefore that the views of the people must be sought through a referendum. The CCJ is indeed in the nature of a “federal” constitution as unlike all other institutions of Caricom its decisions will be supra-national and not subject to constraint and review of sovereign governments. However the JLP must know that given the deeply rooted separatist feelings in Jamaica, there is a near certainty that the CCJ will be rejected in a referendum.

In addition to such major divisive issues as outlined above there have been acrimonious exchanges on whether the CCJ is being advanced because it will be a hanging court while it is well known that the Privy Council tends towards constraints on capital punishment. There have also been allegations that the CCJ unlike the UK Privy Council will be a creature of governments. As Guyana long ago withdrew from the Privy Council when it opted to be a republic, it has been able to stand aside from such debates.

Suffice it to say that mechanisms have been put in place to assure the impartial selection of judges for the CCJ and to ensure certainty in its findings beyond the control or budgetary constraints of governments. The members of the Regional Judicial and Legal Services Commission and the Trustees of the Fund (to be raised by the CDB and whose earnings will fund the CCJ) have now been appointed. They include two Guyanese, former Chancellor Aubrey Bishop and Dr Harold Lutchman, former UG Vice-Chancellor. The appointments were made through processes free from the direction of governments.

While the final appeal functions of the Court have dominated discussions, little attention has been paid to the CCJ’s other responsibilities, its original as distinct from its appellate jurisdiction.

The West Indian (Ramphal) Commission to whose report those who think deeply about integration must inevitably return had clearly foreseen the need to endow the Court with an original jurisdiction as outlined in the following quotation:

“Integration in its broadest economic sense - involving a Single Caricom Market, monetary union, the movement of capital and labour and goods, and functional cooperation in a multiplicity of fields - must have the underpinning of Community Law. Integration rests on rights and duties; it requires the support of the rule of law applied regionally and uniformly. A Caricom Supreme Court interpreting the Treaty of Chagua-ramas, resolving disputes arising under it, including disputes between Government parties to the Treaty, declaring and enforcing Community Law, interpreting the Charter of Civil Society - all by the way of the exercise of an original jurisdiction - is absolutely essential to the integration process...”

More recently Duke Pollard in an important scholarly contribution to the little discussed subject of the Role of Law in National Economic Development has also explored the role of the CCJ in regional economic development. He remarks that: “... not only is the Court designed to replace the Judicial Committee of the Privy Council (JCPC) as the highest appellate municipal court for the Member States of the Caribbean Community but it is also structured to be an international tribunal employing rules of international law in integrating and applying the revised Treaty of Chaguaramas establishing the Caribbean Community including the Caricom Single Market and Economy. In the exercise of its appellate jurisdiction, the Court will be the tribunal of last resort for participating Member States of the Community. As an international tribunal, however, the Court will exercise an original but exclusive jurisdiction in respect of the interpretation and application of the treaty. In the exercise of both jurisdictions, the Court is expected to play a critical role in ensuring legal certainty in the Community and the CSME, in the absence of which there is unlikely to be the stability of expectations which investors require as a basis for predicting outcomes in respect of economic decisions, especially those relating to investments in one or another economic activity....”

“... the status of the Community as an association of sovereign states, coupled with the requirement for every member state to enact the revised Treaty into local law, subjects this instrument to as many interpretations as there are national jurisdictions thereby constituting a built-in prescription for legal uncertainty. In order to avoid this eventuality, the political directorate of the Community determined to invest the CCJ with compulsory and exclusive direction in respect of issues relating to the interpretation and application of the revised treaty.”

One has quoted extensively an explication of the need for the original jurisdiction of the CCJ because, although now a fait accompli, it has not been without challenge. Thus Stephen Vasciannie, Professor of International Law at UWI, (Jamaica), has pointed out inter alia that the combination of Appeal and Original Jurisdiction is without precedent, although it is the case that the Agreement establishing the CCJ provides that three of the nine judges of the Court “shall possess expertise in international law including international trade law”.

Moreover the Professor points out that the Chaguaramas Treaty “in its original form has provisions for the resolution of interstate disputes by judicial means, but one searches almost in vain for a line of cases settled under this heading. This is so partly because Caricom member states correctly strive to resolve their trade disputes by amicable political means.....”

To the above comment one must surely make the rejoinder that the Guyana experience in the case of the trade disputes involving some of its major products is that the political means have at best worked fitfully.

There is also the example of the European Court of Justice, a court or original jurisdiction, which has proven to be a powerful and essential instrument of integration cementing and maintaining inter-state links initiated by economic integration.

It will take resolution by governments supported by informed public opinion if a new date for inauguration of the CCJ in the first quarter of next year is to be met. The cautionary words of the AG of Barbados, Hon Mia Motley, must be borne in mind. “Remember”, she said, “there will only be one chance to get it right.”