The saga of the Caribbean Court of Justice (CCJ) illustrates the best and worst features of the regional integration movement.
At its best, the CCJ represents an effort to integrate and unify across the region one of the fundamental organs of the Caribbean state, the judicial system, in the realisation that ultimately the organic unity of the Caribbean peoples has to be expressed through the integration of the present separate nation states.
At its worst, it illustrates the procrastination, opportunism, inertia, manipulation, and downright incompetence, which litter the history of promoting West Indian unity.
This week I introduce a discussion of the CCJ as the third of the trio of problems, which I had indicated several weeks ago as posing serious obstacles to the advance of CARICOM. To recall, the others named were the Haitian crisis and the recent maritime boundary disputes, both of which have already been covered in the series. These three problems are not only linked, but the CCJ seems to have already been made hostage to the other two.
For one, the Haitian legal system would have proven a complex challenge to integrate with those of the other CARICOM members under the CCJ. That system (like Suriname's) is based on civil not common law. And, the dispute between Barbados and Trinidad and Tobago seems headed to add further delay to the location of the court in Port-of-Spain.
Controversy over origin
The origin of the present drive to bring the CCJ on stream is a matter of some controversy. Many Caribbean persons identify it with several regional governments denouncing the Privy Council because of its failure to uphold the death penalties passed by local courts. This has given the court the image of a 'hanging-court,' an image that upsets well-meaning Caribbean functionaries who believe it is unfair. Unfortunately, this perception is very common, and if perchance it is not true, it certainly was not invented as wicked propaganda against the court. The fault lies elsewhere.
In CARICOM information brochures reference is made to the call for a Caribbean Court first being made in April 1970, when Jamaica tabled a resolution at the Sixth Meeting of the Heads of Government in Jamaica.
But it was not until 1989, at the time of the Grand Anse Declaration, that the call for a Caribbean Court of Appeal 're-surfaced' alongside the most far-reaching call of all, that is, the call for the creation of a Caribbean Single Market Economy (CSME).
A decade-and-a-half later there is still no CSME in existence. After a long hiatus following the 1989 Declaration, it was not until the formation of the WTO (1995), the commencement of the re-negotiation of the then Lome Convention, and the start of negotiations for the proposed Free Trade Area of the Americas (scheduled to come in force at the end of next year) that impetus was given to the movement forward of the proposed CSME. In fact between 1992 and 1999 there were no CARICOM Heads of Government meetings!
The CCJ, the CSME and the death penalty
The question readers may be asking at this stage is: what is the connection between the CSME and these external negotiations. The answer is straightforward. CARICOM would only make sense as an integration movement, if it offered to its members closer trade, financial investment and other economic ties than that they would indirectly enjoy with each other, as a result of them all being part of a wider set of economic cooperation arrangements.
From this perspective the CSME is caught in a race to out-do and out-pace the common external cooperation arrangements the region as a whole (CARICOM) is engaged in promoting in the international arena. This is, in other words, a struggle for the continuing relevance of the CSME. At this stage it is impossible to confidently assert that a meaningful CSME will be achieved before the other deadlines arrive. The responsibility for the procrastination and delay after 1989 lies entirely within the region, and for that matter rests principally upon the various governments in office during this period.
The idea of a Caribbean Court was trapped in this inertia. It re-surfaced for serious public debate only when regional governments wanted to replace the Privy Council as the final regional court of appeal, because changes in jurisprudence in Europe had led the Privy Council to view the death penalty as an inhumane and unacceptable form of punishment.
If the perception of a 'hanging-court' continues to be widely held, the CCJ will never become a truly popular project. This, however, is not because the mass of Caribbean peoples are anti-death penalty (I do not believe that they are), but because they see in the calls by governments to replace the Privy Council, a more insidious effort to control the orientation of the regional court-system. In other words the public thinks the governments are not only unhappy at the verdicts, but also at their inability to exercise leverage on the judicial process.
Regional governments and the CARICOM Secretariat have come to recognize this. And, as a consequence the case for the CCJ has been re-formulated.
The major reformulation has been to link the court to the CSME, with the CSME itself being dimensioned as an indispensable institution if the region is to cope with the rapidly transforming and liberalising global economy.
With this linkage, the CCJ becomes in effect both the court of last resort for those members who abolish the Privy Council, and the judicial organ empowered to determine legal matters pertaining to the CSME.
In other words the CCJ is to be invested with an 'appellate jurisdiction,' as the court of last resort on matters arising out of civil, criminal, constitutional and other disputes in individual member territories. Simultaneously, it will also have an 'original jurisdiction,' where in relation to the treaty and the CSME it is the court of first instance.
In its original jurisdiction the court will be charting territory known as 'public international law,' particularly as this law pertains to economic matters (trade, investment and finance) and human rights, (insofar as these impact, or are impacted on by economic matters). In its appellate jurisdiction it is an extension of the national court system, and its corpus of law would be the legislation and common law of the particular member state from which the appeal originates.
CARICOM squaring the circle: Reconciling sovereign equality, the unanimity rule and creating a singl
Last week I advanced the view that, despite protestations to the contrary, many CARICOM citizens are seized of the view that, in substantial measure, the Caribbean Court of Justice (CCJ) received a sudden infusion of interest by the political leadership of the region, only after the Privy Council's stance against the death penalty. As the final appellate court for most CARICOM member countries, the Privy Council's 'Pratt and Morgan' case of 1993 was the most celebrated instance. It is in reaction to this view that, with great pains, advocates for the CCJ stress its earlier historical origins, as a concept. Thus I referred last week to the 1970 Resolution tabled by Jamaica at the Sixth Heads of Government Meeting in Jamaica and to the 1989 Grande Anse Declaration in Grenada by CARICOM Heads of Government. The latter had called for the creation of the Caribbean Single Market and Economy (CSME) and from this it has been concluded that a Caribbean court of original jurisdiction to deal with the CSME marked a logical next step. Because the linkage between the CSME and the CCJ was not made in any definite or precise form in the 1989 declaration, advocates for the court also attribute the revived interest in it to the 1992 Report of the West Indian Commission.
Remarkably, those who are concerned by this obvious example of political confusion, manipulation, and opportunism, are referred to as "detractors." Thus to quote a widely circulated information brochure on the CCJ: "What is often forgotten by detractors of the Court is that the revived interest in the Caribbean Supreme Court or Caribbean Court of Justice, as it is now called, had its origin in the Report of the West Indian Commission (1992) which predated the landmark decision of the Privy Council in Pratt and Morgan (1993) by one year."
The reference to "detractors" and the stance adopted in this brochure are unfortunate and unfair as they misdirect criticism to obviously concerned citizens (the faceless and nameless ones) rather than to the political directorate which created the problem in the first place.
The original jurisdiction
As pointed out last week the CCJ is intended to have both an original and appellate jurisdiction. In the latter instance it is intended to replace the Privy Council as the final court of appeal to consider and determine appeals on civil and criminal matters coming from the courts of member states. In the case of Guyana, which does not have the Privy Council as its final court of appeal, it adds another layer of appeal. In the case of Haiti and Suriname, complex issues have to be resolved, as their legal systems are based on civil law, whereas those of other member states are based on common law.
The clearly unique function of the court, however, is its original jurisdiction. Here, as a court of first instance, it acts as an international tribunal in considering and determining matters related to the treaty establishing CARICOM. The most important area of the treaty is the CSME, which is to be brought into existence through the adoption of nine protocols by each member state. The CCJ is posited as an indispensable organ for the economic and social development of the region.
In so far as CARICOM remains an association of sovereign states and does not aspire to become either a federal or unitary state, important consequences for the court's original jurisdiction follow. This principle of 'sovereign equality of all CARICOM states' was clearly the legal consideration at work behind the maritime boundary disputes we had previously considered. Indeed this 'sovereign equality' is enshrined in the famous 'unanimity rule,' which governs the deliberations of CARICOM's highest decision-making organ - the Heads of Government Conference.
The legal conundrum
To the layperson like myself, a legal conundrum arises: how can the circle of sovereign equality and unanimity rule be squared with the intent to create the legal basis for a "single economic space," which is the grand intent of the CSME? The apparent resolution of this conundrum is that the separate national jurisdictions of member states would enact laws to enforce this supranational jurisdiction. But having done that, the further question arises: would the national courts still have jurisdiction over the laws passed to bring this situation into existence? And, if this is the case, will each member state then have its own separate jurisdiction?
The conundrum was resolved when the heads of government decided to invest the CCJ with "compulsory and exclusive jurisdiction in respect of all matters pertaining to the interpretation and application of the revised Treaty." This means that national courts cannot pronounce on these matters and are compelled to refer them to the CCJ for pronouncement. A similar compulsory provision is said to exist in the legal system of the European Union.
Since, as was pointed out last week, in its appellate jurisdiction the CCJ will be applying international law, the special circumstances of Haitian and Suriname law will not pose a difficulty, as international law is common to both civil and common law judicial systems. However, another question arises: if international law prevails and states are the principal parties to international law, what is the status of individuals and private bodies before the court? Clearly, at one level these can have their interests represented through the member state, in which they are a national or resident. (The heroic presumption here is that the member state will support and not block access to the CCJ.) There are, however, many issues in international law to which individuals may need to seek direct redress from the CCJ. Worldwide, these have been expanding in recent times in the area of human and other individual rights. Within our region we have the CARICOM Charter for Civil Society, from which I am certain, individuals will, sooner rather than later, take to the court in order to invoke justiciable claims against member states. Indeed, in international law, the corpus of issues pertaining to human rights is growing in importance, relative to purely commercial and economic matters.