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The Caribbean Court of Justice (Dutch: Caribisch Hof van Justitie, French: Cour Caribéenne de Justice[1] often abbreviated CCJ) is an institution of the Caribbean Community (CARICOM) based in Port of Spain, Trinidad and Tobago. Only two countries, Guyana and Barbados, are actually under the Appellate Jurisdiction of the CCJ. Belize has repeatedly stated its intentions of using the CCJ, though has yet to do so.[2][3]

Contents

History

In the aftermath of the collapse of the Federation of the West Indies, which had lasted a mere four years, from 1958 to 1962, the Anglophone continental and insular Caribbean states formed CARIFTA (the Caribbean Free Trade Association), with a view to maintaining an economic link among the various former and continuing colonies of the United Kingdom after the collapse of the political bond. On 1 August 1973, the successor to CARIFTA, the Caribbean Community and Common Market, better known by its acronym, CARICOM, came into being. The founding document of CARICOM, the Treaty of Chaguaramas, was signed by the so-called “Big Four” states: Barbados, Jamaica, Guyana and Trinidad & Tobago, all of which had gained their political independence from the UK during the 1960s. This signing was the starter’s signal for a more mature, though at times slow and halting process of regional integration among the states of the Commonwealth Caribbean.

In 2001, the Conference of Heads of Government of the Caribbean Community, at their 22nd meeting in Nassau, The Bahamas, signed the Revised Treaty of Chaguaramas, rebranding the Caribbean Community and Common Market to include the proposed CARICOM Single Market and Economy (CSME). The single market replacing the original Common Market aspect of the group. Originally an Anglophone club, the admission of Dutch-speaking Suriname in 1995, and Créole-speaking Haiti (where French is the official language) in 2002 has somewhat modified the cultural and jurisprudential mix of the community.

Under the revised Treaty of Chaguaramas, and typical of similar international integrationist movements, CARICOM has restructured itself to include such elements as are characteristic of the modern democratic state, viz, executive, legislative and judicial arms.

The Caribbean Court of Justice (CCJ) is the Caribbean regional judicial tribunal established on 14 February 2001, by the Agreement Establishing the Caribbean Court of Justice. The agreement was signed on that date by the CARICOM states of: Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; Suriname; and Trinidad & Tobago. Two further states, Dominica and St. Vincent & The Grenadines, signed the agreement on 15 February 2003, bringing the total number of signatories to 12. The Bahamas and Haiti, though full members of CARICOM, are not yet signatories, and because of Montserrat's status as a British territory, they must await Instruments of Entrustment from the UK in order to ratify. The Agreement Establishing the Caribbean Court of Justice came into force on 23 July 2003, and the CCJ was inaugurated on 16 April 2005 in Port of Spain, Trinidad & Tobago, is the Seat of the Court.

The 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 of Chaguaramas. On the one hand, it is vested with an original and compulsory jurisdiction with respect to the interpretation and application of the Treaty of Chaguaramas. In the exercise of this jurisdiction, the CCJ will discharge the functions of an international tribunal, applying rules of international law in respect of the interpretation and application of the treaty. The CCJ would thus be performing functions like the European Court of Justice, the Andean Court of Justice and the International Court of Justice. On the other, it exercises an appellate jurisdiction, as a final court of appeal for CARICOM member states, replacing the Judicial Committee of the Privy Council (JCPC) for Anglophone member states. In the exercise of its appellate jurisdiction, the CCJ hears appeals from common law courts within the jurisdictions of parties to the Agreement Establishing the CCJ, and will be the highest municipal court in the region.

The birth of the CCJ came after a long, arduous gestation. In March 1970, the Organisation of Commonwealth Caribbean Bar Associations (OCCBA) first raised the issue of the need to replace the Judicial Committee of the Privy Council as the court of last resort for the Commonwealth Caribbean by a regional court of appeal. Again in Jamaica, just a month later, at the VI Commonwealth Caribbean Heads of Government, the heads agreed to take action on relinquishing the Privy Council as the Anglophone Caribbean’s last appeal court and mandated a committee of CARICOM attorneys-general to further explore the question of the establishment of what was then being called a “Caribbean Court of Appeal”.

Further to the perceived need for an indigenous court as tribunal of last resort in criminal and civil matters in the Caribbean, other considerations eventually weighed heavily in favour of the creation of the judicial arm of CARICOM. As Duke Pollard, then Director of the Caricom Legislative Drafting Facility, wrote in 2000: "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, relating to the establishment of economic enterprises, 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."

The official inauguration was held in Queen's Hall, Port of Spain, Trinidad and Tobago, on Saturday 16 April 2005. As of 2005 the court's appellate jurisdiction is limited to only the CARICOM states of Barbados and Guyana. The first case heard by the CCJ was in August 2005[4] and was to settle a 'decade-long' libel court case from Barbados.

The reasons given for the establishment of a supreme appellate court are many and varied, including a perceived regional disenfranchisement with the British Judicial Committee of the Privy Council.[5][6][7][8]

Controversy surrounding the establishment of this court corresponds to two major events that made the Privy Council unpopular in the Caribbean region.

  • One reason was the refusal of the Privy Council to allow capital punishment for persons convicted of murder (who had spent more than five years pursuing their various appeal options) to be practiced in Caribbean states, even where a majority of the people in the relevant jurisdictions supported the death penalty.[9][10][11] In the case of Pratt and Morgan vs. the Attorney General of Jamaica, the Privy Council, in its 1993 ruling, held that persons imprisoned on death row for more than five years should have their sentences commuted to life imprisonment.
  • The second main issue was a case involving the government of Antigua and Barbuda, where the Privy Council handed out a radio license to a company on behalf of the aforementioned government without its approval or consent. The British-based court has been perceived as having too much power in the Caribbean region.

Several politicians also lamented that the Caribbean nations are the only remaining region of the old British Empire still to rely on the British court system for appeals.

The Jamaica Labour Party resisted the full powers of the CCJ on the basis that it was a hanging court.

In February, 2005, the Privy Council decalared that the CCJ-related companion bills passed by the Jamaican Parliament in 2004 were unconstitutional and therefore void. The bills would have established the CCJ as the final court of appeal in Jamaica.

The Privy Council sided with the appelants, including the Jamaican Council for Human Rights, the Jamaica Labour Party and others, ruling that to establish the CCJ as the country's final appeal court, without it being entrenched in the constitution would undermine the protection given to the Jamaican people by Chapter Seven of the Jamaican constitution. The court concluded that the procedure appropriate for an amendment of an entrenched provision—a referendum—should have been followed.

It is expected that the two Caribbean states that will have the most difficulty accessing the court will be Suriname which has a Dutch-based legal system, and Haiti which has a French-based legal system. All other member states have British-based legal systems with the CCJ itself being predominantly modeled after the British system.

Judges

As of 24 September 2006:

State Members of the Court President Judge
 Trinidad and Tobago Michael de la Bastide 2004-
 Trinidad and Tobago Rolston Nelson 2005-
 Guyana Duke Pollard 2005-
 Saint Vincent and the Grenadines Adrian Saunders 2005-
 Guyana Désirée Bernard 2005-
 United Kingdom David Hayton 2005-
 Netherlands Antilles Jacob Wit 2005-

Jurisdiction by country

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Barbados

Barbados presently recognizes the court for original and final jurisdictions. In 2003 the Parliament of Barbados passed the Caribbean Court of Justice Act and the Constitution (Amendment) Act, and they were brought into force by Proclamation on April 8, 2005.

See also

Notes

References

Further reading

  • Vannina Ettori, "A Comparative Analysis of the Canadian and Caribbean Progressions Toward Judicial Independence: Perspectives on the Caribbean Court of Justice" 2002 Caribbean Law Review 100

External links


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