The role of the Caribbean Court of Justice in its final appellate jurisdiction is again in sharp focus ignited by the PM’s unexpected proposal to establish a final court of appeal in Jamaica. Jamaica signed the Agreement Establishing the CCJ with both appellate and original jurisdictions on December 14, 2001.

Given the high national importance of delinking from the Judicial Committee of the Privy Counsel (JCPC) and engaging the appellate jurisdiction of the CCJ, there have been several calls for a referendum to be held on the matter. The political uncertainties known to attend referendums have been raised and are likely responsible for delaying a commitment to proceed. Although not required by the constitution, the call for a referendum to be held on the issue is widespread and recommended by the JCPC.

The following questions regarding the possible vulnerabilities of the CCJ as opposed to a domestic Court of Final Appeal were raised, and should be answered in relation to the proposal for such a court to be established in Jamaica.

o Are the judges of the CCJ vulnerable to political manipulation?

Unlike the European Court of Justice, where judges are appointed by the ministers of government, judges of the CCJ are appointed by a Regional Judicial and Legal Services Commission whose composition should offer a reasonable degree of comfort to the Court’s detractors. In order to pre-empt the above eventuality, the heads of government have mandated the ministers of finance to provide funding for the recurrent expenses of the court for the first five years of its operation that included US$27 million from Jamaica.

o Is it likely that corruption could feature in the decisions of the CCJ?

The CCJ is well insulated from corrupt influences that include the diversity of judges of differing nationalities from the Caribbean, and the Commonwealth, including one judge from Jamaica. Conversely, Jamaica’s ranking in the international corruption ratings suggests a greater vulnerability to such influences. The CCJ situated outside of Jamaica is much better removed from the corruption and graft of Jamaican politics that might influence the integrity of a domestic court.

o Cost of establishing a domestic court

After Jamaica has invested some US$27 million in the CCJ, the additional expenditure in setting up a domestic court suggests it is unaffordable at any time in the near future. If such resources were available, they could be better used to improve the substandard conditions of the local judiciary and the physical infrastructure of the present court system.

o Time taken to dispense justice

The time taken to hand down judgements is legendary. Foreign investors seeking to invest prefer a stable macroeconomic environment based on predictable laws in order to determine outcomes. Such an environment can and must be present in any Caribbean judicial court system.

A great deal of time, money and intellectual capital has been invested by Jamaica in the establishment of the CCJ that could be in danger of becoming another wasting asset. Is there also to be a referendum on a proposed Jamaican final Court of Appeal?

The following is a Caribbean Court of Justice review by Justice Pollard, a judge on the CCJ.

“The genesis of the Caribbean Court of Justice dates as far back as 1901 when an editorial in the Daily Gleaner of Jamaica surmised that the Judicial Committee of the Privy Council (JCPC) was out of joint with the times and serious consideration should be given to establishing for the region a court of last resort. The idea of a regional court of last resort was again canvassed at a meeting of colonial governors of the Commonwealth Caribbean in Barbados in 1947 but did not commend itself favourably to the gathering. At the Sixth Heads of Government Conference in Kingston (1970), the Jamaican delegation proposed the establishment of a Caribbean Court of Appeal, but once again the proposal did not commend itself to the meeting.

“The issue of establishing a Caribbean Court of last resort was again addressed by the West Indian Commission set up by the Heads of Government at the meeting in Grand Anse, Grenada, in 1989 to consider recommending modifications to the Treaty of Chaguaramas 1973 in order to take the Caricom States into the 21st century. In its landmark report entitled Time for Action (1992), the Commission, like the Representative Committee of the Organisation of Commonwealth Caribbean Bar Associations (OCCBA), recommended the establishment of a Caribbean Supreme Court with both an appellate jurisdiction to replace that of the JCPC and an original jurisdiction to interpret and apply a Revised Treaty of Chaguaramas on the basis of applicable rules of international law. Subsequent meetings addressing the issue of establishing a Caribbean Court of last resort took place within the portals of the Caribbean Community which saw the matter to a successful conclusion on 14th December, 2001, when the Agreement Establishing the Caribbean Court of Justice was signed by member states of Caricom at Bridgetown Barbados.

“However, due to the tortuous and intractable constitutional amendment procedures required to be complied with in order to delink from the JCPC, only Barbados and Guyana to date have made use of the CCJ in its appellate jurisdiction. Several states of the OECS require referendums to delink from the JCPC, and the main political parties of Jamaica have agreed to hold a referendum to determine the issue of delinking although this is not a constitutional requirement. And the political uncertainties known to attend referendums probably explain the tardiness in taking this course of action.”