Rule of Law Externship
Since the independence movement
began in earnest for much of the Caribbean in 1962, to
the very recent past, the newly independent nation states, free from their
colonial masters, in this case almost exclusively Britain, have been subjected
to the laws of a foreign land and a foreign court. Having a foreign court passing judgment from
thousands of miles away led to much disenfranchisement among the nations in the
Caribbean, and this brought a need for something more Caribbean, something that
would be better in touch with the wants, needs, mentality, and overall spirit
For nearly 300 years, much of the Caribbean
was ruled from
Two explicit reasons led to creation
of the Caribbean Court of Justice,
strongly reinforced by a third aspiration: dissatisfaction with the
Privy Council in
The Caribbean Court of Justice was
born out of an idea from the early 1960s in a West Indies Federation where all
the former British colonies of the
Currently all the nations listed in note ten supra, use the Caribbean Court of Justice as the court of original jurisdiction when trade disputes within CARICOM require judicial review. As a court of original jurisdiction, the CCJ discharges the functions of an international tribunal, applying rules of international law in respect to the interpretation and application of the Revised Treaty of Chaguaramas. In this regard, the CCJ performs functions like the European Court of Justice, the European Court of First Instance, the Andean Court of Justice and the International Court of Justice. Many similarities such as locus standi of the courts will be discussed later. “In short, the CCJ is a hybrid institution - a municipal court of last resort and an international court with compulsory and exclusive jurisdiction [with] respect [to] the interpretation and application of the Treaty.” The Community needed a court because the arbitral procedure under the original Treaty of Chaguaramas was never used. Serious disputes were never settled, thereby hampering the integration movement. “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.” In other words, one of the most pressing reasons for having the court was the need for uniformity in CARICOM and the CSME in order to attract foreign capital. This was something that was out of the jurisdiction and expertise of the Privy Council.
The new court is an autonomous body
and has become the judicial organ of the Caribbean Community. This did and does, however, make many observers
nervous about the role and practice of law that the civil law countries of
The Rose Hall Declaration which came out of the Twenty-Fourth Meeting of the Conference of Heads of Government, was adopted on the Thirtieth Anniversary of the Community, July 4, 2003, in Montego Bay, Jamaica, and asserted that although CARICOM is a “Community of Sovereign States” and ultimate supranationality is not its goal, the region would be stronger if the various states were more closely aligned.
Some parallels have been drawn with
the European courts in terms of the constraining nature a regional court could
have on individual governments in the
To add further strength to the
court, the Revised Treaty allows non- CARICOM nations to join the Court with
the hope of gaining legitimacy over a larger constituency. Membership in the court is available to
Officially of course the Court does not have jurisdiction over these nations until they accede to it, and only Member States Contracting Parties of the Agreement have standing or locus standi. According to Article 211:
1. Subject to this Treaty, the Court shall have compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Treaty, including:
a. disputes between the Member States parties to this Agreement;
b. disputes between Member States parties to the Agreement and the Community;
c. referrals from national courts of the Member States parties to the Agreement;
d. application by persons in accordance with Article 222, concerning the interpretation and application of this Treaty.
Along these lines, and because The Revised Treaty is the most powerful document that binds the Community together, with the Single Market and Economy being the central and most integral part of the Community, it makes sense that those in the Community will have to submit to the original jurisdiction of the Caribbean Court of Justice for economic claims, claims that arise out of the single market. This fact is documented in Chapter 9, Articles 211 and 212 of the revised treaty.
Finally, Article 221 states that:
“Judgments of the Court shall constitute legally binding precedents for parties
before the Court unless such judgments have been revised in accordance with
Article 219.” This new legal order will inherently send
waves through the two legal systems of the community, those using the common
law and those using the civil law, “particularly if one accepts that issues of
social and economic rights cannot be seen as being distinct in countries such
As previously discussed, the CCJ is more than the court of
original jurisdiction for CARICOM. It is
also to be the highest appeals court for many of the
One reason not more countries have not begun to use the appellate jurisdiction of the Court is not only the constitutional process that would ensue if a country wanted to so fundamentally change its court of last resort, but that also some countries are already members of an international court.
The Eastern Caribbean Supreme Court
(ECSC) located in
Of the other countries that use the
Caribbean Court of Justice for its original jurisdictional purposes but not yet
for its court of final appeals purposes are
Jurisdiction of the Caribbean Court of Justice dealing with its being the court of last resort was not addressed in the Revised Treaty but was so addressed in the CCJ Agreement, stating “the Court is a superior Court of Record with such jurisdiction and powers as are conferred on it by this Agreement or by the Constitution or any other law of a Contracting Party.” This allows the Court to use a signatory’s domestic law when deciding a case.
The Caribbean Court of Justice has a number of features that tend to distinguish it from other courts of similar regional organization such as the European Court of Justice.
Some of these features are:
1. the unique nature of its jurisdiction;
2. the non liquet rule;
3. the role of doctrine and stare decisis and precedent in the original jurisdiction;
4. locus standi for natural and legal persons;
5. the referral procedure;
6. the advisory opinion procedure;
7. the modality for appointing the Judges;
8. the modality for the appointment of the President;
9. sources from which the Judges may be drawn;
10. mechanism for financing the Court;
11. the peripatetic nature of the Court; and
12. compliance with the Judgments and Orders.
As discussed above, The Revised Treaty gives the CCJ the power of original jurisdiction, though to be sure that the Court has a mandate to serve as both a court of original jurisdiction and appellate jurisdiction with equal weight, Article III of the CCJ Agreement addresses both by stating:
(a) Original jurisdiction in accordance with the provisions of Part II, and
(b) Appellate jurisdiction in accordance with the provisions of Part III.
The Court has adopted stare decisis and precedent as the norm for its decision making; it does, however, realize that the realm of international law often relies more heavily on custom and treaties and further acknowledges that other international tribunals such as the European Court of Justice are, at least on face, obliged to use a form of civil law. The Court also finds that many international tribunals, including the European Court of Justice, develop a form of jurisprudential constant, and in the case of the European Court of Justice, have actually “gone further and adopted an approach closer to a common law regime.” With this in mind the decisions tend to be constant as they must be, and adhered to by other lower national courts when their principles are invoked. Further, the advisory opinions will also need to be respected, and when necessary, followed. The final rational is as follows: “[t]he Community is a capital-importing region, and, therefore, the need exists to create a socio-economic environment where external investors, as well as those within the Community, can have legitimate expectations as to the outcome of investment decisions.” This fact is central to the decision making of the Court and essentially one of, if not the, fundamental reason for the creation of the Court.
Another distinguishing feature of the Court that differentiates it from other international tribunals, in this case namely the European Court of Justice, is the inability of the CCJ to rule a case as non liquet. In both the Revised Treaty and the CCJ Agreement, the Court is disallowed from refusing to determine a case on the grounds of either silence or obscurity of the law. Hence the line written into both the Revised Treaty and the CCJ agreement: “The Court may not bring a non liquet on the grounds of silence or obscurity of the law.” In the civil law systems, judges could, instead of deciding a case, simply write “NL” if the facts did not point to a definite conclusion and leave the case for a time to be determined later. The presence of both common law and civil law systems in the Community requires a more definitive position on this matter. In consequence, a provision was created barring non liquet from being applied. In essence, the prohibition on the principle of non liquet is a license for the Court to use all its available vision and imagination to find difficult answers to complex legal problems. The law of the Community needs to be fleshed out and the best way for this to happen is to have all the possible cases decided; the principle of non liquet would hamper this growth and development at such an early stage in the Court’s life.
obvious high hopes for the integration of the civil law countries but jurists
in these nations do have their reservations.
The CCJ is seen as an overwhelmingly common law court, as is the entire
Community, but empirically the Community, while having only two nations that apply
civil law, fully nine of the fourteen million inhabitants of the Community live
under the rule of civil law. This creates a
considerable number of civil law jurists, lawyers, and as importantly, those
living under the notion and sensibilities of the civil law ideal. Conversely, by being outnumbered, the common
law citizens could also have a worry as new histories, economics, and political
situations, not to mention languages are brought into their more Anglicized
social strata. In its original
jurisdiction facility, however, the concerns of those civil law jurists are
more pronounced. In a presentation by Lim
“The principle of non-liquet and the doctrine of stare decisis are attributes of supranationality. [Another writer] has elaborated extensively on these attributes and has concluded that, in exercising original jurisdiction, these attributes appear to be open to considerably less ambiguity and speculation than in the exercise of the Court’s appellate jurisdiction.
My submission is
that in the application of the principle of non-liquet
and stare decisis in the jurisdiction
There is a risk of bias in the Court for common law reasoning when filling gaps in international treaty and customary law and when applying the doctrine of stare decisis. Stare decisis is not a doctrine of civil law. Nor is it a doctrine of international law, so it would be natural for the Court to relate in its decision making to the manner in which this doctrine is applied in common law.”
“Important differences are that lawyers from the civil countries tend to be more conceptual, while lawyers from the common law countries are considered to be more pragmatic. And that priority is given to doctrine over jurisprudence in civil law; while the opposite is true in common law. Also, in civil law the legal rule has risen to a higher level of abstraction compared to common law. . . .
Civil law statutes do not provide definitions. On the other hand, the common law style of drafting emphasizes precision rather than conciseness. Common law statutes provide detailed definitions, and each specific rule enumerates specific application or exceptions. These differences in style can also be found in international conventions. . . .
In civil law the main tasks of courts are to decide on particular cases by applying and interpreting legal norms, while in common law, courts not only decide on disputes but are also supposed to provide guidance as to how similar disputes should be settled in the future.”
Nevertheless, the “Heads of Government have resolved – by the act of welcoming Suriname and Haiti to the Community – to overcome the non-legal differences and concerns and to extract the positive benefits rather than be intimidated by the less attractive matters. It falls within the domain of the CCJ and the members of the legal fraternity who turn up to argue the matters that engage the Court to ensure that the legal diversity is not an impediment to economic (and social) cohesion but rather – and rightly so – a boom to the integration process.” It is currently thought by the noted jurist Sheldon McDonald that the appellate jurisdiction will provide the greatest harmonization in judicial interpretation in the Community and that the most desirable aspect of the integration of the systems is in the realm of human rights. Certainly this will be slower in coming but will be essential to deeper and further integration of the region.
Finally, it logically can be concluded that the philosophical differences between an international tribunal that exercises the doctrine of stare decisis is not so different from the one that does not. Courts such as the European Court of Justice have found certainty in the consistency of their decisions, even though they do not employ stare decisis on its face. On the other hand, the creativity that stare decisis can produce can be a beneficial in itself as law is created when decisions are made that must be qualified from previous decisions. This will also help the Corpus Juris of the new Court and within the Caribbean Community as a whole.
Article 221 of the Revised Treaty codified the use of stare decisis by stating; “judgments of the Court shall constitute legally binding precedents for parties in proceedings before the Court unless such judgments have been revised in accordance with Article 219.” The Court also uses the position that “with respect to its appellate jurisdiction, is that decisions there can be amended by legislative enactments within the domestic legal order of the contracting parties. On the other hand, it is indeed a “practical impossibility” to anticipate amendment of the Revised Treaty to mitigate or otherwise amend the law developed by the Court with respect to the original jurisdiction.” In other words, it is much easier for individual legislatures of each individual state to create acts or pass amendments to counteract appellate jurisdictional decisions than it is for all the nations in the Community to agree to change tenants of the Treaty. In conclusion, as L. Neville Brown writes, “Inconsistency in judicial decisions affronts even the most elementary sense of justice. In this sense the principle of stare decisis, of abiding by previous decisions, figures prominently in most legal systems. . . .” Using this, the Court may overturn laws of individual nations if the laws are found to be opposed to the Revised Treaty.
When examining locus standi, it is necessary to look at the trends in International Criminal Law and Humanitarian Law and the ways in which the natural person may invoke the judicial power of a particular court have changed so drastically in recent years. In the Treaty of Rome, the European Union made a vast change from a system allowing only member states to bring a case before a tribunal on behalf of an aggrieved individual to a system allowing a natural and legal person to commence a case directly. CARICOM recognized this difference and also that “economic integration and the Single Market and Economy were not about abstract factors of production, but were intended to benefit persons.” Hence, Article 222 set out the ways in which a natural person could come before the Court under original jurisdictional matters.
First, the individual must establish that he or she has been “prejudiced in respect of the enjoyment of the right or benefit.” Then the Court will need to decide whether “in any particular case this Treaty intended that a right or benefit be conferred by or under this Treaty on a Contracting Party shall enure to the benefit of such persons directly.” Finally, the individual bringing the claim must show that the Contracting Party entitled to bring the claim “omitted or declined” to bring the claim, or that the party has “expressly agreed that the persons concerned may espouse the claim instead of the Contracting Party so entitled.” In other words, the person must exhaust efforts within his own country in an attempt to have his country represent him, for a case to be brought by an individual.
When these factors are met “the Court has found that the interest of justice requires that the persons be allowed to espouse the claim.” This is a key feature of an international court as it brings more accountability to the particular states involved. In the European Union members are to be held financially liable for breaches of the Treaty in actions commenced by individuals.
The Caribbean Court of Justice also has the power to issue advisory opinions. This power is given to it in the Revised Treaty in Article 212 stating: “The court shall have exclusive jurisdiction to deliver advisory opinions concerning the interpretation or application of the Treaty.” The Court is permitted to do this “only at the request of the Contracting Parties or the Community.” This feature will prove very important tool for the Community, allowing it to find new rules of law sooner that it could otherwise while waiting for cases to be brought up before it. It will further allow for existing rules of law to be fleshed out by the Court, thus giving more certainty to the law of the Community in general, hence promoting more economic stability and growth as more foreign businesses feel that the Caribbean is a safe region in which to investment.
Although only the Community and
Advisory opinions can also be
issued by the Court when a
The particular modalities for choosing members of the Court are sui generis. The Caribbean Court of Justice is one of the few—if not the only international judicial tribunal with an independent mechanism to place Judges on the bench, and select a President. “While the bench of all other international tribunals are appointed by member governments either directly or via elections, the CCJ Agreement establishes in Article V a Regional Judicial and Legal Services Commission.” In a further effort to insulate the Court from political pressures or possible bribery, and to prevent the government of one Country enjoying a disproportionate amount of power over the Court, there are no Government representatives allowed on the Commission. The members of the Commission are:
a. the President who shall be the Chairman of the Commission;
b. two persons nominated jointly by the Organization of Commonwealth Caribbean Bar Association (OCCBA) and the Organization of Eastern Caribbean States (OECS) Bar Association;
c. one chairman of the Judicial Services Commission of a Contracting Party selected in rotation in the English alphabetical order for a period of tree years;
d. one chairman of a Public Services Commission of a Contracting Party selected in rotation in the reverse English alphabetical order for a period of three years;
e. two persons from civil society nominated jointly by the Secretary-General of the Community and the Director-General of the OECS for a period of three years following consultations with regional non-governmental organizations;
f. two distinguished jurists nominated jointly by the Dean of Faculty of Law of the University of the West Indies, the Dean of Faculties of Law of any of the Contracting Parties, together with the Chairman of the Council of Legal Education; and
g. two persons nominated jointly by the Bar of Law Associations of the Contracting Parties.
The President of the CCJ therefore has the dual role of leading the Court and leading the Regional Judicial and Legal Services Commission as Chairman of the Commission. The tasks that this entity must perform are described in Article V, paragraph 3, and include:
a. making appointments to the office of Judge of the Court, other than that of President;
b. making appointment of those officials and employees referred to in Article XXVII and for determining salaries and allowances to be paid to such officials and employees;
c. the determination of the terms and conditions of services of officials and employees; and
d. the termination of appointments in accordance with the provisions of this Agreement.
Paragraph three then goes on to empower the Commission to use disciplinary control over the Judges, other than the President, as well as over the officials of the court.
Article IV, paragraph 7 then lays
out the procedure for appointing or removing Judges. “A majority vote of the Commission is
required.” Finally, with regard to the President, he
shall be “appointed or removed by the qualified majority vote of three quarters
of the Contracting Parties on the recommendation of the Commission.” CARICOM released in a press conference on
August 17, 2004: “At the 25th Conference of Heads of Government of the
Caribbean Community held in Grand Anse,
Article IV paragraph 10 establishes minimum qualifications for members of the Court, stating that the candidate must be: “for a period or periods amounting in the aggregate to not less than five years, a Judge of a court of unlimited jurisdiction in civil and criminal matters in the territory of a Contracting Party or in some part of the Commonwealth, or in a State exercising civil law jurisprudence common to Contracting Parties, or a court having jurisdiction in appeals from any such court and who, in the opinion of the Commission has distinguished himself or herself in that office.” 
The Court has found that valuable
contributions to the law of CARICOM and the
Finally, one must note the importance of finding outside-the-Community legal talent is the requirement of Article IV paragraph 1: “the Judges of the Court shall be the President and not more that nine other Judges of whom at least three shall possess expertise in international law including international trade law.”
To finance the Court a new organization was formed. The Caribbean Court of Justice Trust Fund was set up to allay fears that the Court may be heavily influenced and manipulated by the political executives through financing and the like. The Conference of the Heads of Government accepted the recommendation that the Trust Fund be established. The original investment of US$100 million was found to be enough to secure in perpetuity the financial solvency of the institution. The Contracting Parties have also agreed to take loans from the Caribbean Development Bank.
The Board of Trustees of the Caribbean Court of Justice Trust Fund is another unique feature of the CCJ designed to handle the finances of the Court. There are again no governmental representatives; instead, a number of “pan-Caribbean entities were invited to make nominations. All happily concurred.” These nominated are:
1. the Secretary-General of the Community;
the Vice-Chancellor of the University of the
the President of the Insurance Association of the
the Chairman of the Association of Indigenous Banks of
5. the President of the Caribbean Institute of Chartered Accountants;
6. the President of the Organization of Commonwealth Caribbean Bar Associations;
the Chairman of the Conference of Heads of Judiciaries
of the Member States of the
the President of the
the President of the
One of the interesting features of
the CCJ is the physical location of the Court.
There was a problem with access to justice with the Privy Council in
The CCJ Agreement finally states in Article XXVI, with regard to enforcement that the Parties must take all steps necessary to ensure that the decisions of the Caribbean Court of Justice be enforced on the same basis as the decisions of that country’s superior courts, and that the authorities of that country must act in aid of the CCJ.
To date the Caribbean Court of
Justice has decided six cases that have been reported.
The first case was decided on February 26, 2005, and was an application for
special leave from the Court of Appeal of
The first case noted the lack of
clear rules to exercise the use of appellate jurisdiction. This was contrasted with
When speaking to the CCJ Act, the
Court noted the “sparse transitional provisions.” This, however, allows the Court to create a
body of law it may otherwise not find itself in the position to create,
allowing the Court to use its judgment when deciding whether to hear a case. The Court went on to find that “the
substitution of one court of final resort for another is to be regarded as a
procedural rather than a substantive change in the law,”
and also noted that “It is reasonable to infer that Parliament intended that in
any case falling outside the ambit of that provision, an appeal would no longer
lie to the Judicial Committee after the commencement date, but instead an
appeal would lie to this Court, subject of course to the fulfillment of the
conditions and the procedural requirements imposed by the new legislations.” The Court finishes the case by accepting it
and more notably showing a sign of independence and boldness by stating: “Ought we to grant special leave to appeal to
this Court in the circumstances of this case? As [has been] pointed out,
section 8 of the CCJ Act has no doubt quite deliberately, left it entirely to
this Court to formulate the principles by which it will be guided in
determining whether to grant or to refuse special leave to appeal to it. We do not propose at this early stage to
attempt to make any comprehensive formulation of those principles. We propose rather to deal with the matter on
a case by case basis and to limit ourselves to articulating in each case the
principle by which we have been guided in granting or refusing special leave to
appeal. Secondly, in shaping these
principles we will of course pay attention to the practice adopted by the
Judicial Committee, but we will not feel bound to adhere strictly to it. We will also pay attention to the practice
and principles adopted by final courts of appeal in other Commonwealth countries,
but we will develop our own jurisprudence in this area incrementally on an “as
needed” basis.” The Court closes by allowing the case to be
heard, which becomes the second judgment handed down by the Court saying that
not hearing the case could result in a “miscarriage of justice.”
Very notable is that in closing, the Court has some strong words of reprimand
for the Court of Appeal in Barbados and its Justice Husbands because of a seven
year delay in the Court of Appeal. “We
would be failing in our duty if we did not express our strong disapproval of
judicial delays of that order. They deny
parties the access to justice to which they are entitled and undermine public
confidence in the administration of justice.
We would like to think that such delays are now a thing of the past in
In the Court’s second decision, the Court kept up its criticism of the Barbados Court of Appeals. The second judgment was the ruling on the case previously granted certiorari. The case dealt with libel that “allegedly occurred when a radio station broadcast calypso songs that criticized the quality of a poultry farmer's produce. The farmer said he had to close his farm in 1990 as a result of the criticism.” The Court of Appeals awarded the farmer damages and costs because the defendant failed to present all the pieces of evidence it initially claimed it had. After much discussion the Caribbean Court of Justice concluded that the evidence was not necessary and that the Court of Appeals rationale in the case was “fatally flawed and plainly wrong.” In other words, the Court took out only parts of the defense that the Court of Appeals had wholly eliminated. It then again spoke in hopes that the case could be decided in a more timely manner with the new corrections.
Interestingly, the Court cited cases
from not only the West Indies but from
The third case is one from the Court
of Appeals from
In this case, as in the first case, the Court is making law regarding when a case can be properly brought before it, this time with respect to Guyana instead of Barbados. In considering the procedural question the court states, “In other words the grant of special leave is always a matter of discretion and never a matter of right. Thus it is a condition precedent of the exercise of that discretion in favor of the applicant that he or she should have an arguable case. Accordingly where it is clear that the appeal as presented is wholly devoid of merit and is bound to fail special leave will not be granted. The respondents have contended that the instant application should be dismissed on that ground.” In looking at the substantive question, the Court maintains, “The applicant has not succeeded in demonstrating that his intended appeal has any real prospect of success by showing either that he held public office during his service with the Revenue Authority or that he had an existing right to property in the form of superannuation benefits or that he had a constitutional right to natural justice in respect of the termination of his employment with the Revenue Authority. We therefore refuse to grant him special leave to appeal against the decision of the Court of Appeal. Although we have carefully considered this application, we do not consider it to be a viable appeal worthy of a fuller hearing.” The Court goes on the find that because the court does not find for the applicant in the first two elements it cannot for the third, being the in forma pauperis that quotes Lord Keith in Farrington v R: “For the avoidance of doubt . . . their Lordships consider that it would be inappropriate to grant special leave to appeal as a poor person where it is plain beyond rational argument that the appeal is doomed to fail.”
Perhaps equally as important as the rule of law being developed is the Court’s
decision regarding costs. The Court
explains, “We have anxiously considered the question of costs. This is the first application to this court
The fourth case that came before the
court dealt with two men convicted of murder in
Briefly, the fifth case is similar to the
third except it is a criminal case, more specifically a murder case which carries
the mandatory death penalty coming from
The sixth and most recent case the Court has reported was heard on January 25th, 2007 and was reported on March 19th. The case concerned a claim for land, appealed from the Guyanese Courts. The Court in this case said that it would allow an attorney who had not filed the proper paperwork for his client indicating that he was taking over for a former attorney the ability to act “on the record.” Here an attorney filed an appeal from a client who had clearly given his consent and “was acting with the appellant’s actual authority.” The lower court initially had refused to hear the appeal because of this; however, the case is now to be sent back for the proper appeal process. After the decision the Court then gave guidance to other cases or controversies that have not yet presented themselves. This is significant in that the court is answering questions it is not specifically asked in order to create law at a faster rate than it could by waiting for specific cases to come before it.
No discussion on the Caribbean Court of Justice would be complete without a discussion on the notion that the CCJ was feared to be a “hanging court.” The feeling among many scholars was that the CCJ was created to enforce death penalty laws that the Privy Council began to disallow.
The case of Pratt and Morgan was
the seminal case in which the Privy Council effectively outlawed the death
penalty. This was not something that was
done out of hand, meaning the Privy Council did not out rightly claim the death
penalty to be unconstitutional. The Council
found that if a prisoner is on death row for more than five years, this is
considered cruel and unusual punishment, and the individual may not be put to
death. It also found that the mandatory death
sentence was unconstitutional, finding that murder convictions should be
construed as discretionary, not mandatory. This was felt by the Caribbean Community as a
usurpation of their rights of self determination, which further indicated that
the Privy Council does not reflect the general sensibilities, cultural values,
and feelings of justice in the region. Many in
Indeed, the recommendation for the establishment of a
Caribbean Supreme Court in substitution for the Privy Council and vested with
original jurisdiction concerning the interpretation and application of the
Treaty of Chaguaramas, even though one of the most seminal determinations of
the West Indian Commission, was anticipated twenty years before by the
Representative Committee of OCCBA set up to examine the establishment of a
Caribbean Court of Appeal in substitution for the Judicial Committee of the
Privy Council. In short, if Pratt and
Morgan was a watershed in Caribbean jurisprudence, the West Indian Commission's
recommendation for a Caribbean Supreme Court was not an innovation in
In point of fact, one of the most compelling arguments for
the establishment of the Caribbean Court of Justice is the need to have an
authoritative, regional institution to interpret and apply the Treaty, as
amended, in order to create the CARICOM Single Market and Economy. But, unfortunately, the original jurisdiction
of the Caribbean Court of Justice and its importance for the success of the CSME
is little understood and even less appreciated by many members of the legal
fraternity at the present time.” Not all agree with this line of reasoning
however, “in striking down Caribbean death penalty laws, the Privy Council's
tendency to focus primarily on the views of international jurists [as opposed
to those in the
In last analysis, however, it must be understood that the decision of Pratt and Morgan at the very least afforded the everyday citizens of the Caribbean the impetus to decide that they were ready to be the arbiters of their own decisions in a Court of Law, and the decision in Pratt and Morgan certainly promoted popular support for an indigenous court of last resort.
The Caribbean Community has been in existence for over thirty
years now and is the oldest regional integration system in the developing world. Since 2005, it has a Court to provide unity
and stability. It was time for this
region to have a court of its own in both the original jurisdiction and the appellate
jurisdiction. Most nations in the
Community have been independent for well over forty years, and in that time
former colonies have proved they are able to support themselves in most
ways. It is now possible for the Privy
Council, which has been called “an affront to sovereignty . . . inconsistent
with independence” by the Chief Justice of Barbados,
to be replaced by a
 29 Encyclopaedia Britannica
 Leonard Birdsong, The Formation of the Caribbean
Court of Justice: The Sunset of British Colonial Rule in the English Speaking
Caribbean, 36 U.
 Hugh M. Salmon, The Caribbean Court of Justice: A March with Destiny, 2 Fl. Coastal L.J. 231, 234 (2000).
 Honorable Sir David Simmons, Caribbean Legal Affairs:
The Caribbean Court of Justice: A Unique Institution of
 Hugh M. Salmon, The Caribbean Court of Justice: A March with Destiny, 2 Fl. Coastal L.J. 231, 239 (2000).
 Honorable Mr. Justice Hayton, The Role of the Caribbean Court of Justice: An Overview, Address at
the Conference of Society of
 http://www.caricom.org/index.jsp (follow “Community” hyperlink).
 http://www.caribbeancourtofjustice.org/ (follow “About the Court” hyperlink). The Agreement was signed by Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St. Kitts & Nevis, St. Lucia, Suriname and Trinidad & Tobago
 Lillian Crawford-Abbensetts & Andrea Ewart, The
 BBC News, Caribbean Court Hears First Case, http://news.bbc.co.uk/2/hi/americas/4132328.stm (August 9, 2005).
 Locus standi, Latin for ‘place to stand,’ standing, right to bring an action.
 http://www.caribbeancourtofjustice.org/ (follow “About the Court” hyperlink).
 http://www.caribbeancourtofjustice.org/ (follow “About the Court” hyperlink then the section III hyperlink).
 Sheldon McDonald, The Caribbean Court of Justice: Enhancing the Law of International Organizations 29 (2005).
 The Rose Hall Declaration on “Regional Governance and Integrated Development” http://www.caricomlaw.org/docs/rosehalldeclaration.htm
 McDonald, supra note 17, at 30.
 McDonald, supra note 17, at 32.
 Revised Treaty of Chaguaramas Establishing the Caribbean Community including the CARICOM Single Market and Economy, July 5, 2001, available at http://www.caricom.org/jsp/community/revised_treaty.jsp?menu=community [hereinafter Revised Treaty].
Lillian Crawford-Abbensetts, Andrea Ewart, and
Douglas Earl McLaren, The
 Revised Treaty, supra note 27, art. 221.
 McDonald, supra note 17, at 34.
 Jane E. Cross, The Trade Winds of Judicial Activism: An Introduction to the 2004-2005 Goodwin Seminar Articles by Dennis Morrison, Q.C., and the Honourable Mia Amor Mottley, Q.C., M.P., 30 Nova L. Rev. 393 (2006).
 Leonard Birdsong, supra note 2, at 219.
 BBC Monitoring
 Leonard Birdsong, supra note 2, at 219.
 Robert Hart, Bombshell Ruling – Privy Council Says Passage of CCJ Unconstitutional, Jamaica Gleaner, February 4, 2005, (found at http://www.jamaica-gleaner.com/gleaner/20050204/lead/lead1.html).
 Leonard Birdsong, supra note 2, at 219.
 Financial Times Information, Jamaican Opposition
Calls for Referendum on
 http://www.eccourts.org/ (follow the “About the ECSC” hyperlink).
 Leonard Birdsong, supra note 2, at 222
 CIA World Factbook, Legal Systems, found at https://www.cia.gov/cia/publications/factbook/fields/2100.html
 http://www.ttlawcourts.org/ (follow the “Supreme Court” and “Structure” hyperlinks).
 http://www.belizelaw.org/ (follow “The Judiciary” hyperlink).
 http://www.privy-council.org.uk/ you need a identify the particular document that supports the assertion in the text
 Agreement Establishing the Caribbean Court of Justice, Feb. 14, 2000, available at http://www.sice.org/trade/ccme/ccj1.pdf [hereinafter CCJ Agreement].
 McDonald, supra note 17, at 39.
 CCJ Agreement, supra note 47, art. III, para. 1.
 McDonald, supra note 17, at 39.
 Non liquet, Latin for ‘it is not clear,’ given when there is no clear law governing, the court can not come to a conclusion.
 CCJ Agreement, supra note 47, art. XVII, para. 2; Revised Treaty, supra note 27, art. 217, para. 2.
 McDonald, supra note 17, at 40.
 H.R. Lim A. Po, Bridging the Divide: The Interface Between the Civil Law System and the Common Law System, With Special Emphasis on the Role of the CCJ, Address to the Symposium on “The Caribbean Court of Justice” in Paramaribo, found at http://www.caribbeancourtofjustice.org/papersandarticles/Bridging%20the%20Divide.pdf (Oct. 31, 2003).
 McDonald, supra note 17, at 40.
 Revised Treaty, supra note 27, art. 221.
 L. Neville Brown & Francis Jacobs, The Court of Justice of the European Communities, 314 (1989).
Treaty Establishing the
 McDonald, supra note 17, at 47.
 Revised Treaty, supra note 27, art. 22.
 Klaus-Dieter Borchart, The ABC of Community Law 88-93 (2000).
 Revised Treaty, supra note 27, art. 212.
 McDonald, supra note 17, at 65.
 Sui generis, Latin for ‘of its own kind’
 CCJ Agreement, supra note 47, art. V.
 Press Release, Caribbean Court of Justice, Caribbean Court of Justice President to be Sworn In (August 17, 2004) found at http://www.caricom.org/jsp/pressreleases/pres136_04.htm
 McDonald, supra note 17, at 72.
 CCJ Agreement, supra note 47, art. IV, para. 10.
 http://www.caribbeancourtofjustice.org/ (follow “The Judges of the CCJ” hyperlink).
 CCJ Agreement, supra note 47, art. IV, para. 1.
 McDonald, supra note 17, at 73.
 In forma pauperis, Latin for ‘in the form of a pauper,’ someone granted this status does not have the means with which to pay for legal costs and those costs can be waived or counsel appointed. Almost exclusive to criminal cases.
 CCJ Agreement, supra note 47, art. III, para. 3.
 All CCJ Judgments can be found on the CCJ web site at http://www.caribbeancourtofjustice.org/judgments
 25 October 2005, CCJ Appeal No AL1 of 2005 at 6, on web-site of caribbeancourtofjustice.org
 25 October 2005, CCJ Appeal No AL1 of 2005 at 6, on web-site of caribbeancourtofjustice.org
 BBC News, Caribbean Court Hears First Case, supra note 13.
 16 March 2006, CCJ Appeal No CV1 of 2005 at 24, on web-site of caribbeancourtofjustice.org
 8 November 2006, CCJ Appeal No CV2 of 2005 at 2, Overall Summary, on web-site of caribbeancourtofjustice.org
 4 December 2006, CCJ Appeal No AL6 of 2006 at 8, on web-site of caribbeancourtofjustice.org
 19 March 2007, CCJ Appeal No CV2 of 2006 at 4, on web-site of caribbeancourtofjustice.org
 The Honourable Kenny D. Anthony Prime Minister of Saint Lucia, The Caribbean Court Of Justice: Will It Be A Hanging Court, Address to The Norman Manley Law School, found at http://www.stlucia.gov.lc/primeminister/former_prime_ministers/kenny_d_anthony/statements/2003/the_caribbean_court_of_justice_will_it_be_a_hanging_court_june_28_2003.htm (June 28, 2003).
 Kristy Brimelow, A
Shadow of Death Hangs Over
 Bruce Zagaris, Capital Punishment and International Human Rights v. U.S. Detention Policy, Vol. 22, No. 5, International Enforcement Law Reporter (2006).
 Duke Pollard, The Caribbean Court of Justice: Closing
the Circle of
 Brimelow, supra note 131.
 http://www.caribbeancourtofjustice.org/ (follow “About the Court” hyperlink then the section II hyperlink).
 Melissa A. Waters, Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties, 107 Colum. L. Rev. 628, 690 (2007).
 McDonald, supra note 17, at 79.
 Dennis Morrison, Caribbean
Legal Affairs: The Judicial Committee of the Privy Council and the Death
Penalty in the Commonwealth