Opinion: Caribbean Court of Justice VS the Privy Council

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(Kaieteur News Editorial,12 July, 2018) The recent ruling against presidential term limits in Guyana by the Caribbean Court of Justice (CCJ) is revealing. The CCJ is the final court of appeal, replacing the Privy Council.

Guyana is not the only country to be proud of the CCJ. Other CARICOM nations — Barbados, Belize and Dominica– have made the CCJ their final appellate court since it was established in 2001 and began operating in 2005.

The reason is these four leaders have viewed the CCJ as strengthening the regional integration process that began with the signing of the Caribbean Free Trade Area (CARIFTA) Treaty in Barbados in 1967.

It is therefore instructive for the other eleven member-countries of CARICOM to join the CCJ and make it the official judicial arm of CARICOM. The CCJ was inaugurated on 16 April 2005 in Port of Spain, Trinidad and Tobago. It has two jurisdictions: an original jurisdiction and an appellate jurisdiction. In its original jurisdiction, the CCJ is an international court with compulsory and exclusive jurisdiction in respect to the interpretation and pronouncements of treaties such as the Revised Treaty of Chaguaramas.

This treaty established the Caribbean Community.

In its appellate jurisdiction, the CCJ hears appeals as the court of last resort in both civil and criminal matters from those member states, which have ceased to allow appeals to the Privy Council.

The birth of the CCJ came after a long and arduous period of planning by several countries and organizations in the region. In March 1970, the Organization of Commonwealth Caribbean Bar Associations first raised the issue of the need to replace the Judicial Committee of the Privy Council as the court of last resort for the newly independent countries of the Caribbean by a regional Court of Appeal.

In April 1970, at the Sixth Caribbean Heads of Government Conference held in Kingston, Jamaica, the Jamaica delegation tabled a proposal to establish a regional Court of Appeals to replace the Privy Council as the Anglophone Caribbean’s final appeal court. But ironically, Jamaica is not a member of the CCJ.

One of the reasons for the establishment of an Appellate Court in the Caribbean was because several leaders, including the late Forbes Burnham had believed that the British-Privy Council had too much legal power over the countries of the Caribbean.

They also lamented that the independent Caribbean countries are the only remaining ones in the former British Empire that relied on the British-Privy Council for appeals. Another reason was the refusal of the Privy Council to allow capital punishment for persons convicted of murder in Caribbean states, even though a majority of the people in the relevant jurisdictions supported the death penalty.

In the 1993 case of Pratt v Attorney General of Jamaica, the Privy Council ruled that persons imprisoned on death row for more than five years should have their sentences commuted to life imprisonment.

The above suggests that there was a clear need to have a legal permanent, regional institution to authoritatively and definitively interpret and pronounce on laws in the region. The Caribbean Court of Justice is intended to be such an authoritative institution. It is critical to the success of the CARICOM and regional integration.

Many in the Caribbean have embraced the idea that a Caribbean Court of Appeal would enrich regional jurisprudence and is conceivably less expensive to access than the London-based UK Privy Council.

However, over the years, many have grown despondent because it appears that the leaders of the Caribbean lack the wisdom to see the importance of making the CCJ the region’s final court of appeal.

As a legal institution, the CCJ mirrors the confidence inspired by the Privy Council. No country in the Caribbean, which means well to the region would prefer the Privy Council over the CCJ.

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