The they still turned to the Judicial
The question must be asked firstly, not what if the establishment of the Caribbean Court of Justice is a sound move but what exactly is the Caribbean Court of Justice. As many perceive the CCJ as it is commonly referred to, would be a replacement to the previous Privy Council; which was and still is in some Caribbean states the last court of appeal. The Privy Council is considered to be one of the oldest institutions of government. It has many roles which include giving advice on the exercise of prerogative, (A Prerogative is an exclusive legal right given from a government or state and invested in an individual or group, the content of which is separate from the body of rights enjoyed under the general law of the normative state) powers and certain functions assigned to the Queen and Council by the Act of Parliament. ”1 The Judicial Committee of the Privy Council also has a major role to play, as it is the highest and final court of appeal in the United Kingdom, it has overseas territories and Crown dependencies, as well as in the Commonwealth countries.This is expected because these territories and countries were once ruled by the British, before they became independent. Therefore, if they had any decentralization (Decentralization is the policy of delegating decision-making authority down to the lower levels in an organization) issues the Privy Council was the court used to deal with these issues As years past, these territories have become independent and they have developed their own Government and Judicial institutions.
However, they still turned to the Judicial Committee of the Privy Council to deal with certain cases which were beyond their calling because they did not have a final court of appeal. The Caribbean Community has come together and attempted to change this by making a proposal to set up a final court of appeal within the region. The Caribbean Court of Justice is projected to be more than the final court of appeal.
There will also be an original jurisdiction (original jurisdiction of a court is the right to hear a case for the first time without going through a lower level court) in respect of the interpretation and application of the Treaty Establishing the Caribbean Community; which was created in 2003 under the 2001 Revised Treaty of Chaguaramus, The Agreement Establishing the Caribbean Court of Justice and the Caribbean Single Market and Economy (CSME). The CCJ will exercise both an appellate (Appellate jurisdiction is the power of a court to review decisions and change outcomes of decisions of lower courts) and an original jurisdiction”2. The CCJ will be a municipal court of last resort as well as an international court with compulsory and exclusive jurisdiction in respect to interpretation and application of the Treaty.The aim of the CCJ is “to provide the Caribbean Community with an accessible, fair, efficient, innovative and an impartial judicial system built to be reflective of the history, values and traditions of the Caribbean whilst maintaining an inspirational, independent institution which is worthy of emulation by the regional courts and the trust and confidence of the people”3. As was stated earlier, the main role of the Judicial Committee of the Privy Council was to be the court of last resort for any issues which the Caribbean Community encountered.However, the Caribbean Court of Justice will not only provide a court of last resort but also an original jurisdiction. This shows that the CCJ will not simply be providing the service which the Privy Council did but it is designed to do much more service to the Caribbean Community.
According to the aim of the CCJ, having this regional final court of appeal is a more accessible system because it is located within the region and therefore it would be more cost effective.Added to that the efficiency levels would increase significantly in that the loaded dockets would be eased since cases of relevance would no longer need to be appealed at the Privy Council for final ruling and rather be tried and appealed in the region. “An illustration of this fact is the trip to the Privy Council is more expensive as we have to travel all the way to England to acquire a verdict that could just as easily be adjudicated in the region”4. Also, when both the respondents and the persons appealing to the Council get to England, they have to seek solicitors to litigate on their behalf.This is because the lawyers are not allowed to just walk into the Privy Council, even though it is a court, since in any jurisdiction lawyers have to be admitted to the Bar in the respective country to practice law. However, with the Caribbean Court of Justice, their distance is much shorter and flights are more accessible. Also, the lawyers have a choice where they can go directly to court and litigate their case or they can access solicitors.
The establishment of a Caribbean Court of Justice will provide confidence and inspiration to members of the region.Even though we are independent territories and countries, having to go to the Privy Council as the final court suggests that the Caribbean region is still under the role of the British and not enough credit and confidence is given to the members of the judicial committee of the Caribbean. By having a Caribbean Court of Justice, the process of independence will be considered to be complete. This will also reassure the members of the region that we have competent members in the Caribbean and it may be an inspiration for them as they will have people who may have the same historical background and may better understand their issues.
It would also further the step in the deepening and strengthening of the regional integration process. ”5 The Caribbean Court of Justice is considered to be an innovative and neutral justice system. Many may think that having the Privy Council will help to make unbiased decisions because the members of the Council are not members of the Caribbean. I believe that the Caribbean Community also has unbiased and qualified members who will perform their duties in a professional manner.
The Caribbean has produced a judge to sit on the International Court of Justice, two judges for the Sea-bed Tribunal and two for the War Crimes Tribunal in Yugoslavia. Also several of our judges have been in demand as chief judges and judges of the Court of Appeal, along with many of our highest judicial officers who have sat on the Privy Council”6. The CCJ can be seen as innovative in that they would have a different style in dealing with the cases which are brought it, as it is able to formulate its own judgment in making final decisions.Also, as the judges in the Caribbean Court of Justice have all practiced law in the Caribbean and have some understanding of criminals and the “criminal mind of Caribbean”, this enables them to make better decisions in the Caribbean context from their experiences. With the Privy Council, their decision may solely be based on the legal aspects of the case but they might apply previous judgment to a particular case in the formulation of their decision which may not be applicable to the Caribbean region as many European laws are not incorporated in Caribbean law.The Caribbean is a very close knit “community” where many persons have inter travelled and have laid roots, therefore many families are very widespread and many people have crossed paths and made strong ties with other Caribbean nationals, knowing this fact one may think or assume that judgments of the court will not be fair or may even be biased depending on who the defendant or plaintiff may be. Also “it would be at the mercy and caprice of the political directorates of the region who may seek to starve it of resources if it did not do their bidding or offended them by their rulings.
It is also feared that heads of governments might not always do what is right when appointments to the Courts were being considered. ”7 The experience of what happened in the European Court of Justice where heads of governments punished judges for perceived offences, is far from implementation since “judges of the CCJ will be appointed by the Regional Judicial and Legal Services Commission whose composition of 11 are varied in the way they are chosen and under the agreement governing the CCJ, no member of the Regional Judicial and Legal Services Commission can receive instructions from persons or organizations outside of the Commission. 8 The establishment of the CCJ could serve to motivate judges who would see the possible appointment as an important career goal. This could encourage them to develop their capacity as jurists.
As noted by Attorney Michael Vaccianne of Jamaica “Nothing is more conductive to personal growth than responsibility; by the same token, if Caribbean jurist were to render judgements in a situation where the final responsibility were to rest in the Caribbean there is every likelihood that such judgements would display resonating and analysis on par with the worlds most acclaimed institutions”.With all the positives, “it is a fact that the decline in the standard of judicial ethics and the increasing authoritative tendencies of the political directorate together constituted a threat to the liberty of the citizen, and that the Privy Council was a valuable empire and a long stop to where we could appeal if necessary. It is also felt that giving up such a facility is not worth taking. 9 One case to note was the Pratt and Morgan case which was a landmark since “it has taught all Caribbean judges and our entire societies an absolutely valuable lesson in simple humanity”10, where after 16 years Earl Pratt and Ivan Morgan after they were convicted of murder and sentenced to death but were still on death row. This case was significant since it is thought that the decision made by the Privy Council was a tremendous one, but in English law once a person is convicted an sentenced to death their execution is done within 3 – 6 weeks.
Was there any humanity when Pratt and Morgan committed murder? Shouldn’t they be happy to be alive for 16 more years. “The idea of a Caribbean Court is not new. It has been 30 years in incubation. We as Caribbean states are all independent. However, if this is true why do we relate to the Privy Council as our final court of appeal? Are we truly independent? “Now that its time has come- this critical investment in our future viability- the real concern must be how do we get it right. ”11