14/03/13
GOVT 3067
Caribbean Court of Justice (on exam)
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The agreement establishing the CCJ came into force on 23 rd July 2003,
CCJ idea dates back to the early 1960s in the West Indian Federation ,
however never came to fruition
CCJ is a hybrid institution and has two parts:
i. a municipal court of last resort
ii. Exclusive jurisdiction in respect of the interpretation and application of the
Treaty of Chaguaramas
The CCJ discharges the functions of an international tribunal applying rules of
international law in respect of the interpretation and application of the treaty.
Functions like the European Court of Justice.
The exercise of tis appellate jurisdiction, the CCJ hears appeals from common
law courts within the jurisdiction of parties to the Agreement Establishing the
CCJ, and is the highest munipal court in the region
Members signing on to the establishment of the CCJ agreements to
implement decisions of the CCJ
The CCJ is intended to be such an authoritative institution to pronounce the
rights and obligations established by CSME
Only Barbados, Belize and Guyana have replaced the JCPC (Judicial
Committee of the Privy Council) appellate jurisdiction
Two jurisdiction:
i.
Its original jurisdiction
ii.
its appellate jurisdiction
Reasons to remove the Privy Council
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Era of colonialization came to an end and the JCPC is not needed by
Sovereign states
1931 the Statue of Westminster allowed for overseas territories to abolish the
JCPC as the final court of appeal
If the Privy Council is so respectable and impartial in its decisions, why did
the rest of the Commonwealth nations eliminate its jurisdiction?
Argued that JCPC applied law uniformly across the empire
According to Isaac Hyatali, the countries that abolished the jurisdiction of
the court did so because it would be offensive to their sovereignty as
independent nations to have a foreign tribunal as their final court of appeal
It is a compromise of sovereignty to leave that decision to a court which is
part of the former colonial hierarchy, a court in the appointment of whose
members we have no say Hyatali
First, however, the jurisdiction of the JCPC must be discussed in order to
understand its limitations. The PC has limited jurisdiction and it only functions
as a Court of Appeal in a very restricted sense.
People who allege the importance of the Court, often give it more credit than
what it deserves when determining the appropriate jurisdictions in Common
Law cases
Appeals to the Privy Council lie at the discretion of the local court in civil
proceedings where the matter at hand is one of great general public
importance or otherwise ought to be submitted to her Majesty in Council for
decision
Therefore some appeals from the Caribbean can be dismissed not because
they arent substantive but they fall outside the PC jurisdiction
The jurisdiction the PC bounds its ruling according to the precedents
established by the House of Lords. The jurisdictions of the PV can be evidence
of the lack of understand of the Caribbean dynamics, like is the case with the
death penalty.
Case between Government of Antigua and Barbuda where the PC gave a
radio licence to a radio company without the Governments approval
Argument that the PC applies better rules to the death penalty and fear that
CCJ would become a hanging court
How can judges sitting thousands of miles away that do not grasp the
dynamics of Caribbean social, political and economic life make decisions
about the Caribbean?
The retention of the PC demonstrates the dependency situation where local
people are not good
Also argues that since the judges are foreign the changes for bribes and
corruption are reduced
PC has upheld the decisions of Caribbean judges 63% of the time
The PC has also asked to be replaced as the final court of appeal
Problems facing the CCJ
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Confidence in decisions it will render
CCJ structure suggests that it lacks foresight to see that Haiti and Suriname
would become full members of CARICOM and also foresee that possibility that
in the distant future Venezuela may also become a member of CARICOM
The court is designed for a purely Anglophone CARICOM. The CCJ is
incongruous with the legal system of Suriname and Haiti
Selection of judges does not have enough randomness, which is important to
give the appearance of fairness. Most judges will come from the Anglophone
Caribbean or the larger Caribbean countries. Excludes Haiti and Suriname.
The need for constitutional amendments is an obstacle to the establishing the
CCJ as the final court of appeal
In all of these countries a constitution amendment requires a special majority
in their parliaments and in the others a constitutional amendments also
requires a referendum.
T&T and Jamaica as major CARICOM players not making the court operations
has ramifications to give it a legal identity
An argument has been made claiming that the money spent on a CCJ can be
used to better local courts
Caribbean countries do not want to up their sovereignty to the CCJ (ironically
they prefer to give it up to PC)
Some countries do not see it as a priority
