Three months ago, the Trinidad and Tobago columnist Anand Ramlogan, writing in the Sunday Guardian (February 22) made this observation: "The Caribbean Court of Justice (CCJ) is supposed to be the main catalyst for West Indian integration. Next to the West Indies cricket team, it represented the only true regional alliance. It is under threat."
The evidence he gave in support of this contention was that the opposition Jamaica Labour Party (JLP) in Jamaica had started legal proceedings to block the implementation of the court in Jamaica. And, in his native Trinidad and Tobago, the Panday-led UNC opposition had also challenged the steps being taken by the Manning government to implement the CCJ. The irony of this latter action has not been lost on the Caribbean public at large, since it was the Panday government when it was in office prior to the last elections, which had taken the required steps to bring the establishment of the court to its present stage.
When we consider that not only are these two countries major players in CARICOM, but together it is proposed that they would be contributing 60 per cent to the cost of financing the court, we can see the basis for Ramlogan's concern. If to this we add the possible complications arising from the maritime boundary dispute between Barbados and Trinidad and Tobago, the financial position gets worse as the proposal is for Barbados to contribute 13 per cent to the cost of financing the court. Taken together these actions constitute a clear and present danger to the completion of the logistics and structure of the court. His concern that the CCJ is under threat is a legitimate one.
Ramlogan is a lawyer and like some others in his profession he also objects to the CCJ being established at this point in time. The grounds stated for this view are that the local legal system in Trinidad and Tobago is so poor (particularly the magistracy) that replacement of the Privy Council with the CCJ is completely unacceptable. It would further undermine the already poor level of jurisprudence.
Searching for the body
of the law
While Ramlogan identifies important practical impediments that stand in the way of establishing the CCJ, it should not be forgotten that the process of establishing the CCJ requires more than "logistics, physical structure and infrastructure." As jurists have been at pains to remind us, what is also at issue is the corpus of law the CCJ would have to rely on (and to which it is expected it would also be contributing). As an appellate court it is fairly straightforward for the layperson to appreciate this body of law. Certainly it would be the law emanating from the courts of member countries of CARICOM and the Privy Council, which would have been the former final appellate jurisdiction. As a rule, we can expect to find that a considerable body of this law would have indigenous roots.
The corpus of law, however, becomes more complex to appreciate when we consider the original jurisdiction of the court. That is, when the CCJ sits as the court of first instance in dealing with integration matters pertaining to the Treaty of Chaguaramas. In this jurisdiction there is very little indigenous law on which the CCJ can rely. The court will clearly have to turn, therefore, to other international tribunals with similar concerns in the field of trade and economic integration. The same may also be said of human rights, but perhaps to a lesser extent, as a Caribbean Human Rights Commis-sion is now under serious consideration for CARICOM.
There are many international tribunals, which share similar areas of original jurisdiction as those proposed for the CCJ. These include the Dispute Settlement Body of the WTO, the International Tribunal for the Law of the Sea and a number of similar courts established in other integration schemes in Africa, Asia, Latin America and Europe. The consensus among lawyers seems to be that resort will be mostly made to the Court of Justice of the European Communities and the Court of First Instance of the European Countries, as well as the European Free Trade Area Court.
Is there an irony
somewhere?
There is, I am sure, an irony somewhere in all this, given the fact that in establishing the CCJ the region is seeking to "throw off the yoke of the Privy Council." In my view the region is fortunate in that the European courts have so far embraced three fundamental principles in the evolution of the community's judicial system, which would be of inestimable value to the region if they were similarly embraced as fundamental principles.
The first is that the court should promote the unity of law within the integration area. Indeed the court itself is the ultimate expression of this unity. The second principle is to "ensure that the judicial system is transparent, comprehensive and accessible to the public." The importance of this for the region cannot be overstressed. If a poll was taken, I suspect that, in most jurisdictions, Caribbean courts would be rated very poorly. This poor rating would only be exceeded if the poll were taken in regard to the third principle, which is the court must be based on "the need to dispense justice without unacceptable delay."
There is an old adage that justice delayed is justice denied, and some Caribbean courts are infamous for their tardiness and sloth in dispensing justice.
Conclusion
If the CCJ is to fulfil only half of the expectations of those who espouse its cause, it could make a serious contribution to the growth, development and welfare of Caribbean societies and their peoples. There is a growing recognition among analysts and practitioners of the importance of law to economic development. This is evident everywhere. Thus, without guaranteed human rights, due process, and efficient court processes, the quality of governance would be poor, political and social instability would be rife, and the investment and production environment discouraging. In like manner without property rights that are secured and based on well-expressed rules and regulations, which are credible and enforceable, without undue delay, investment and production would be severely impeded.
There can be no doubt about the importance of a good legal system for economic and social progress. The question that readers will have to answer for themselves, is whether the CCJ is indispensable for achieving this in the CARICOM framework? In other words is the case for the CCJ a real case, or continued rationalisation after the fact, of what was initially portrayed as a "hanging court," because of the mouthing at that time of its political backers.