Over the next few weeks IN FOCUS will share with readers questions and answers on the controversial Caribbean Court of Justice (CCJ).
The information is being used with the permission of the CARICOM Secretariat. We hope you find it informative as we continue to debate issues vital to the region's future.
This week's questions are from the publication Caribbean Court of Justice, What it is and What it does.
Q. What is the Caribbean Court of Justice (CCJ)?
A. The CCJ is the proposed regional judicial tribunal to be established by the Agreement Establishing the CCJ.
It had a long gestation period commencing in 1970 when the Jamaican delegation at the sixth Heads of Government conference, which convened in Jamaica, proposed the establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council.
Q. How is the proposed CCJ different from the Caribbean Court of Appeal proposed by Jamaica at the Sixth Heads of Government Conference?
A. The CCJ has been designed to be more than a court of last resort for member states of the Caribbean Community.
For, in addition to replacing the Judicial Committee of the Privy of Council, the CCJ will be vested with an original jurisdiction in respect of the interpretation and application of the treaty establishing the Caribbean Community.
In effect, the CCJ would exercise both an appellate and an original jurisdiction.
Q. How is the appellate jurisdiction different from the original jurisdiction?
A. In the exercise of its appellate jurisdiction, the CCJ will consider and determine appeals in both civil and criminal matters from common law courts within the jurisdictions of member states of the community and which are parties to the Agreement Establishing the CCJ.
In the discharge of its appellate jurisdiction, the CCJ will be the highest municipal court in the region.
In the exercise of its original jurisdiction, the CCJ will be discharging the functions of an international tribunal applying rules of international law in respect of the interpretation and application of the treaty.
In this regard, the CCJ would be performing functions like the European Court of Justice, the European Court of First Instance, the Andean Court of Justice, West African Court of Justice and the International Court of Justice.
In short, the proposed CCJ is intended to be a hybrid institution - a municipal court of last resort and an international court with compulsory and exclusive jurisdiction in respect of the interpretation and application of the treaty.
Q. Is there general agreement on the establishment of the Caribbean Court of Justice?
A. No! Opinions are divided on the need for, or desirability of, the Caribbean Court of Justice.
Opposition to the CCJ appears to be informed by various considerations. One such consideration is suspicion of the unknown and professional resistance to change which is, more often than not, reinforced by the vigour of inertia.
Some members of the legal community also entertain legitimate reservations about the ability and willingness of member states of the Caribbean Community to provide adequate funding for the Court on a sustainable basis.
Other stakeholders question the likelihood of the CCJ attracting to its benches judges of the required expertise and legal erudition to inspire confidence among members of the legal community and litigants generally.
Some of these considerations have been addressed here. Proponents of the Court perceive of this institution as completing the independence of Commonwealth Caribbean States.
Other supporters of the Court consider that an indigenous court consisting of regional judges is best suited to pronounce on issues of regional importance and, in so doing, contribute to the development of a regional jurisprudence.
ORIGINAL JURISDICTION OF THE CARIBBEAN COURT OF JUSTICE
Q. What is the relationship between the CCJ and the CARICOM Single Market and Economy?
A. The CARICOM Single Market and Economy (CSME) is established by the Treaty of Chaguaramas as revised by nine Protocols.
The treaty, as revised, is to be interpreted and applied by the CCJ in the exercise of its original jurisdiction.
Q. But how does this function of the CCJ impact on the CARICOM Single Market and Economy?
A. By interpreting and applying the treaty which establishes the CSME, the CCJ will determine in a critical way how the CSME functions.
The CSME creates an extensive range of rights and obligations for states parties to the treaty and, through these states parties, for community nationals.
Q. Why must community nationals enjoy rights and discharge obligations through their states? Why cannot such nationals enjoy rights and discharge obligations without the intervention of their states of nationality?
A. This is an important question which requires a clear and comprehensive response.
Firstly, it must be borne in mind that treaties, like the Treaty of Chaguaramas, are governed by international law. International law is based on rules which are quite different from the legal rules normally applied by judges in our national courts.
One important difference is that rules of international law ordinarily apply only to states which are called subjects of international law.
Only in exceptional cases are those rules directly applicable to individuals. Consequently, individuals only enjoy rights in international law through their states of nationality on which those rights are conferred by international law.
For private entities or individuals to enjoy rights under an international instrument, the instrument would have to be implemented into local law by the state concerned.
Q. What are the exceptional circumstances in which rights and obligations under international law are conferred on individuals directly?
A. One such exceptional circumstance is the example of the European Union created by the Treaty of Rome as amended by the Treaty of Maastricht and which grants rights and creates obligations directly for citizens.
Q. How is the Treaty of Chaguaramas different from the Treaty of Rome?
A. The Treaty of Rome created institutions like the Council of Ministers and the European Commission which are intended to make laws directly for European nationals - that is, without the intervention of their national assemblies.
Q. Why cannot the organs of the Caribbean Community, like the Conference of Heads of Government, make laws directly for Caribbean Community nationals without the intervention of their national assemblies?
A. This is because any such arrangement appears to be politically unacceptable!
Consequently, the Caribbean Community has always been and remains an association of sovereign states and any decisions of the organs of the Community must be enacted into local law by national assemblies before such decisions can create rights and obligations for nationals of the Caribbean Community.
And this is an extremely important feature of the Caribbean Community!
Q. Why cannot the member states of CARICOM agree to have the Treaty of Chaguaramas interpreted and applied in some way other than the CCJ? The Treaty of Chaguaramas has existed for more than twenty-five years without a Court. What is all this fuss now about the need for a Caribbean Court to interpret and apply the Treaty?
A. Yes! Indeed, the old Treaty of Chaguaramas provided for arbitration in the event of disputes concerning the interpretation and application of the treaty.
Unfortunately, however, the arbitral procedure was never used and serious disputes were never settled, thereby causing the integration movement to be hampered.
Moreover, the rights and obligations created by the CSME are so important and extensive, the provision of professional services, the movement of capital, the acquisition of land for the operation of businesses, that there is a clear need to have a permanent, central, regional institution to authoritatively and definitively pronounce on those rights and corresponding obligations.
The Caribbean Court of Justice is intended to be such an authoritative institution. Arbitral tribunals reach decisions which are binding only on the parties to a dispute.
However, the determinations of the CCJ will create largely binding norms for all member states parties to the Agreement establishing the CCJ.
Q. Would the absence of such a court adversely affect the development and functioning of the CSME?
A. Definitely? The Caribbean Community is not known for significant capital accumulation.
Consequently, it is largely a capital importing region. Foreign investors seeking to invest normally prefer a stable macro-economic environment based on predictable laws in order to determine outcomes.
Such an environment can and must be created by the CCJ!
CREATING A STABLE
ENVIRONMENT
Q. How can the CCJ create a stable macro-economic environment suitable for the attraction of foreign capital?
A. The CCJ has been configured to ensure that the laws of the CSME are uniform and predictable.
Firstly, the CCJ will have exclusive jurisdiction in respect of the interpretation and application of the treaty.
If it had concurrent jurisdiction with other courts of the community, there is a likelihood of conflicting opinions on important economic, commercial and financial issues thereby creating uncertainty and unpredictability in the business climate and macro-economic environment!
Stability of expectation is a fundamental requirement for investment decisions.
Q. So what happens where another court in the Caribbean Community is seized of an issue which involves a question concerning the interpretation and application of the Treaty? Must the court decline to accept jurisdiction and pronounce on the case?
A. No! The Court must accept jurisdiction and refer the particular issue to the CCJ for determination before delivering judgment, which must respect the CCJ's determination of the relevant issue!
A similar requirement of referral obtains in the European Union and it has been credited with promoting social and economic cohesion among the member states.
Q. What happens if a delinquent party to a dispute refuses to submit to the jurisdiction of the CCJ?
A. By signing on to the Agreement Establishing the CCJ, all Member States of the Community would be submitting to the jurisdiction of the CCJ in the exercise of its original jurisdiction which is compulsory and exclusive.
The European Court of Justice does not enjoy exclusive jurisdiction but when a court of last resort is seized of an issue concerning the interpretation or application of the Treaty of Rome, the court must refer the issues to the European Court of Justice for determination.
Q. How are decisions of the CCJ enforced?
A. Member states signing on to the agreement Establishing the CCJ would agree to enforce its decisions in their respective jurisdictions like decisions of their own superior courts.
Q. What recourse is open to an aggrieved party where the defaulting state refuses to enforce a decision of the CCJ?
A. The simple answer is none!
But in this respect the regime establishing the CCJ is not different from similar regimes establishing the European Court of Justice or the Andean Court of Justice.
Participants in the regime would have undertaken to respect and enforce the decisions of the court and one would have to depend on a culture of respect for the rule of law and obedience to the determinations of competent tribunals to ensure enforcement of judgments.
Q. Can the CCJ reverse itself as it considers fit thereby creating uncertainty in the applicable norms?
A. The Agreement Establishing the CCJ does provide for the revision of decisions in specified circumstances. But such revisions are intended to satisfy the ordinary requirements of justice!
Revision of judgments is not to be secured lightly or capriciously. Indeed, in the ordinary course of events, decisions of the CCJ constitute stare decisis.
Q. What do you mean by stare decisis?
A. Stare decisis is peculiar to common law jurisdictions but it has been imported into the Agreement Establishing the CCJ to ensure certainty in the applicable norms.
The doctrine of stare decisis or judicial precedent, requires the court to pronounce in the same manner provided the circumstances of the case are similar.
Q. You have mentioned the term "norms". What are norms and are they peculiar to the original jurisdiction of the CCJ?
A. "Norms" are rules of law prescribing the conduct to be observed.
Norms are not peculiar to the original jurisdiction of the CCJ. However, the norms applied by the CCJ in the exercise of its original jurisdiction would normally be rules of international law.
In the exercise of its appellate jurisdiction, the CCJ would apply the norms peculiar to common law jurisdictions as distinct from civil law jurisdictions.
Q. Since Suriname and Haiti have civil law jurisdictions, can they participate in the regime establishing the CCJ?
A. The response to this question would depend on the jurisdiction of the CCJ to which access is desired.
Both civil law and common law jurisdictions can participate in the CCJ in the exercise of its original jurisdiction.
This is so because the CCJ in exercising its original jurisdiction is discharging the functions of an international tribunal applying rules of international law.
International law rules are common to both common law and civil law jurisdictions.
However, problems would occur if Suriname or Haiti wished to participate in the appellate jurisdiction of the CCJ where municipal law rules and not international law rules apply.
Conference has established a working group to examine the issue with a view to finding an acceptable solution.
