The following is the second part of an essay written by Dr. Billy Hall, which won him a gold medal in the Jamaica Cultural Development Commission's (JCDC) Creative Writing Competition. Dr. Hall is a regular contributor to The Gleaner.
1. WHAT IS THE CCJ?
The CCJ is perceived by its foremost framers to be one the chief instruments to express as well as to expedite the new, united commitment of Anglophone Caribbean countries for sheer survival, much more sparkling success.
It is a court that will be called upon to make decisions on matters of law. Perhaps a helpful way to perceive it is to say that the name is indicative of the scope of its authority - Caribbean - and the scope of its work - justice. As a Caribbean Court it will serve the region as a final Appellate Court, which is currently lacking, and as well as a Trade Court.
What currently prevails is that litigants whose cases are heard in the Supreme Courts of sovereign Caribbean Community (CARICOM) countries, except Guyana, have their appeals heard in the United Kingdom before the Judicial Committee of the Privy Council (JCPC).
The creation of the CCJ will be a mechanism to provide the exclusive position of taking their cases instead, to the CCJ, in the Caribbean.
Also, the creation of a Caribbean Single Market and Economy (CSME) will require a court to regulate functions, and so the CCJ will be that court.
2. WHY IS THE CCJ NECESSARY?
External events of relatively recent and extraordinary character have occurred to make the CCJ necessary. These events have imposed on Caribbean political, economic and cultural life an entirely new paradigm that forces fundamental changes for sheer survival much more success. A major change resulting is greater Caribbean co-operation, and so the necessary framework institutions to establish the new order. The CCJ is a necessary framework organisation that provides the legal foundation for the changes entailed in the achieving of the new regional vision.
The organisational structure of CARICOM is headed by the Heads of Government. Next is the Council of Ministers, then Ministerial Councils that oversee support bodies with specialist functions, such as the: Council on Foreign and Community Relations (COFCOR), The Council on Trade and Economic Development (COTED), the Council on Finance and Planning (COFP), and the Council on Human and Social Development (COHSOD).
The instrument for effective achieving co-operative relationship and business goals among CARICOM members is the Caribbean Single Market and Economy (CSME) and the organisation that is the legal basis for ensuring legitimacy as well as the level of stability investors expect is the CCJ.
3. WHAT ARE ADVANTAGES OF HAVING THE CCJ?
Politically, the creation of the CCJ may be perceived as an act of sovereignty. Many nationals of the region see continued reliance on the UK Privy Council a regrettable "dependency syndrome" that should have been ended years ago. They consider its persistence a travesty, in the light of having gained political independence decades ago. Perhaps then, the CCJ may be justifiably described as the "final cut" of the political umbilical ties between Britain and her former Caribbean sugar colonies.
The creation of a Caribbean Community (CARICOM) for the purpose of greater co-operation through the instrumentality of the Caribbean Single Market and Economy (CSME) will require necessarily a legal entity to interpret the CARICOM Treaty, seeking to handle matters of travel, access to markets, quality of products, and contracts of all kind for production and administration, etc.
Economically, the CCJ is critical to the success of the Caribbean in the new world order of globilisation. The CCJ is necessary to make the region's best expertise available to more persons, of more limited income. Travel to the UK is a high cost unnecessary for litigation in the Caribbean, not to mention the cost of engaging UK-resident, legal firms and representatives.
Granted that travel from Jamaica to Trinidad and Tobago is about a hundred miles farther than from Kingston to New York, the cost of air travel for litigants from both Kingston and Port-of-Spain travelling to London pale in comparison. Interestingly, while the CCJ is to be headquartered in Trinidad and Tobago, the Treaty provisions allow for an itinerant functioning, stating clearly that the justification lies in consideration of cost and convenience.
What this means in practical terms is that if the CCJ has five cases originating in Jamaica, requiring 20 persons to be in attendance, this number could be cut in half if the cases are heard in Jamaica, where already 10 persons would be resident. The cost-saving effect would be substantial.
Sociologically, the CCJ provides an unprecedented opportunity to use law as a "tool of social engineering" to re-define as re-shape Caribbean legal culture authentically. This means, to make Caribbean jurisprudence help make Caribbean culture more true to the image and reality of indigenous desire and demand - in contradistinction to inauthentic legal presumptions, whether invariably Euro-centric in UK attorneys, or subtly autochthonous in British-trained attorneys and politicians who are Caribbean nationals. Indeed, the CCJ is anticipated to creatively shape Caribbean jurisprudence from the vantage point of nearness rather than distance. Judges, familiar with Caribbean culture, are expected to make decisions, consistent with the first proposition of the Preamble of the Treaty, to have a "determinative role in the further development of Caribbean jurisprudence through the judicial process".
4. HOW WILL THE CCJ BE FINANCED?
According to the Caribbean Development Bank (CDB), it has used its very creditable AAA rating to access the international money market and thereby provide the CCJ with the needed US $100 million. That total is to be put in a new independent Trust Fund, and income from the investments of the Fund used to finance in perpetuity the capital and recurrent budget of the CCJ. The CDB says the mechanisms for the establishing and operating of the Fund are already in place.
The CDB says it has borrowed US$96 million for lending to the member states, and has dipped into its special development to raise an additional US$4.4 million.
Contributors to the fund and their contributions, stated in millions of US dollars are as follows:
Trinidad & Tobago $31.6
Jamaica $28.7
Barbados $13.5
Guyana $08.8
Belize $03.7
The smaller island nations of Antigua & Barbuda, Dominica, Grenada, St. Kitts-Nevis, St. Lucia, and St. Vincent & the Grenadines, would each contribute US$2.2m. The funding plan, therefore, seems sound enough to remove earlier expressed concerns as to possible fragility or inadequacy.
5. WHAT ARE THE OTHER CRITICISMS BEING MADE OF THE CCJ?
A principal objection is grounded in the belief that the credibility and competence of the CCJ would be suspect. Sometimes unstated, and sometimes not explicitly articulated, is the conviction that the United Kingdom based (JCPC) is capable of rendering consistently, superior decisions, especially in regard to human rights issues.
But if truth is to prevail, then the factual observation must be publicised that the UK is really lagging in critical areas of jurisprudence, and is only in recent times making some needed changes. For example, earlier this year, the proposal was made that the Lord Chancellor, a political appointee to the British Parliament, should not be involved in the appointment of judges.
Of course, this is not to disparage in any way the high standards of British jurisprudence, rooted in Roman law, marvellously forged and crafted in traditions of highest integrity and impressive rhetoric. Attorneys who have imbibed the rulings of Denning, Diplock, and Devlin are forever introduced to interpretive nuance that is as enhancing, and engaging, as it is enchanting.
Nevertheless, this is to say that we in the Caribbean have learned our lessons well, evidenced by the fact that most national Appellate decisions are upheld by the British law lords. In fact, the Caribbean has been already demonstrating leadership in jurisprudence, reaching much outside the region.
For example, in the case of Collymore v the Attorney-General of Trinidad and Tobago, a fearless, creative decision made by the national Appellate Court was upheld by the JCPC and has since been cited approvingly in common law jurisdictions in Canada, the USA, and India. And in Jamaica, the UK court recently upheld the decision of the Supreme Court in the libel award case involving former Minister of Tourism Anthony Abrahams, and the Gleaner Company.
Therefore, there seems good reason to consider the serious quality of some of the contrary views. At least, the sources of such negative criticism must be considered suspect among the ranks of the leading legal "heavyweights" of the region, for those who support the CCJ have impressive credentials.
For example, mention might be made of the Chief Justice of Trinidad and Tobago, Michael de la Bastide, the Chief Justice of the Supreme Court of the Organisation of Eastern Caribbean States (OECS), Denis Byron, the Chief Justice of Jamaica, Lensworth Wolf, and two experts on Constitutional Jurisprudence, Grenada's Simeon McIntosh, and Jamaica's Lloyd Barnett.
In efforts to discredit the CCJ, there are some persons who advocate that the CCJ should be restricted in authority and function to what they understand to be the original Treaty purpose, which they say, does not provide for Appellate jurisdiction in terms of civil and criminal matters. But this really an attempt to "turn back the hands of the clock" for it is based on a narrow interpretation of the mandate of the CCJ, and an overwhelming majority of CARICOM countries have gone past that interpretation.
Closer examination of the wording of the Revised Treaty of Chaguaramas, which establishes the legal authority for the CCJ, reveals the possibility for a valid interpretation that gives the CCJ scope to function wider than as a Trade Court. In the Preamble the character of the Treaty makes it clear that the essential concern of the legislation is the "Charter of Civil Society", adopted by the Heads of Government in 1997.
Throughout the Treaty, human rights issues are highlighted. For example. Article 7 seeks to protect the individual against discrimination based on nationality. Article 9 obligates member states to "facilitate the achievements of the objectives of the Community" which objectives, as spelled out in Article 8, are concerned with the developmental issues of the individual and society - health, education, employment, cultural activities, access to technology, etc.
Therefore, while Article 211 of the Treaty says that the CCJ's jurisdiction is to hear and determine disputes concerning the interpretation and application of the Treaty, for anyone to interpret those words to be a Trade mandate is to apply too much of a limited interpretation. For a possible wider perspective precedence may be drawn from the European Court of Justice (ECJ), which has a similar mandate.
Interestingly, when the ECJ began applying its mandate narrowly, it soon learned that only by drawing upon a wider context, involving national or domestic law and principles of human rights and justice did their usefulness and performance as a court improve significantly, as well as their relevance.
In a landmark case, the ECJ ruled that it had a duty to protect the rights of individuals, as provided for in the constitutions of member states, adding that such provisions related integrally to general principles of human rights and justice (Stauder v City of Ulm - 29/69: 1969 ECR 419).
The CARICOM mandate of CCJ permits attention to matters of social justice, for one of the supporting organisations of implementation, the Council for Human and Social Development (COHSOD) is responsible for non-trade issues, such as health, education, employee-employer relations, and development of youth, women, sports, and culture (Article 17).
In effect then, the CCJ is to function dually - as a Trade Court and as an Appellate Court. A strongly heard criticism of the CCJ in Jamaica is that the issue should be decided by referendum. But if that direction is to be followed then several important observations would have to be satisfactorily dealt with in law, ethics, and administrative accommodation and cost.
In regard to law, is there any provision in the Constitution of Jamaica to justify such a course of action? Is there any constitutional requirement for a referendum to be held concerning the specific issue of substituting CCJ for the JCPC as Jamaica's final Appellate Court? The simple answer is, no.
In regard to ethics, since there is no legal obligation, is there an ethical one? Is the Government ethically wrong in going ahead without having a referendum, despite public outcry to have a referendum?
Ethical issues are always difficult to resolve with certainty. For example, did not both political parties in the General Election (last) year include the issue in their platforms? Yes, the ruling party stated clearly the intention to proceed with the CCJ without having a referendum. Is the party to be judged weak ethically for being consistent with its promised position?
Furthermore, the call for the holding of a referendum seems based on the erroneous idea that the CCJ was conceived as a Trade Court, and should remain so. However, as earlier commented on, that interpretation is narrow and subject to serious challenge.
Administrative accommodation and cost of holding a referendum are important considerations. At this time in Jamaica's history there is no statutory authority for organising and running a referendum. Legislation would have to be enacted to enable the Electoral Office to put in place certain necessary provisions for the conducting of a referendum.
The cost of conducting a referendum is about the same as holding a General Election, and so could be approximately $350 million reports the Electoral Office. How prudent would that expenditure be for a country strapped for cash and pursuing no necessary legal obligation?
On reflection of the journey travelled from the meetings of the CARICOM heads from inception until this year, the overall impression is that chauvinistic, parochial, and opportunistic politics has been interfering with the game.
Unless the people of the region rise to their feet in protest against the small band of dysfunctional musicians, the gifted bards will not be heard for a long time.
As the momentum gathers for the establishing of the CCJ, the expectation rises that soon again, in spontaneous response, the people of the cricketing Caribbean will join in singing beyond the boundary, 'Cricket, lovely cricket.
