I have long held the view that the Caribbean Court of Justice (CCJ) will not get very far without the full membership of Jamaica and Trinidad and Tobago, the two largest jurisdictions in the Commonwealth Caribbean and, arguably, the most powerful. It was therefore with mingled feelings of regret and bewilderment that I have heard of the pronouncements of the Prime Ministers of Jamaica and Trinidad and Tobago that they would require that referenda be held in order to determine whether their countries should delink from the Privy council and accept the CCJ as their final appellate tribunal.
One would appreciate my dismay at the prime ministers' pronouncements, having regard to the fact, as I understand it, that neither of their two Constitutions requires that a public referendum be held in order to delink from the Privy Council and accept the CCJ as the final appellate tribunal. One can only put this down to their reluctance to accept the CCJ as the region's highest appellate court. Mr Golding has long been on record as opposing the CCJ, notwithstanding that a recent Jamaica Gleaner editorial has noted that he now seems to be "softening his stance" towards the CCJ.
However, I recall that shortly after his appointment as Prime Minister of Jamaica, he had publicly stated that the Privy Council has been a pillar of the Jamaican society for over a hundred years, therefore, the people should have a say as to whether the CCJ should replace the Privy Council as Jamaica's final court of appeal. Prime Minister Persad-Bissessar, a very distinguished graduate of our Faculty of Law, has now joined her colleagues Messrs Panday and Dookeran in calling for a referendum on Trinidad and Tobago's delinking from the Privy Council and joining the CCJ in its appellate jurisdiction. I make bold to say that our prime ministers would not be calling for a referendum, when none is required, had it not been for the fact that they are not particularly in favour of the CCJ and, that, on a public referendum, the people are likely to vote against leaving the Privy Council. But the Privy Council is a British institution. It is not ours. It has merely agreed to do us a favour in serving as our final appellate court. Therefore, as I have stated in my book on constitutional reform, the British Parliament in a one-sentence piece of legislation can take that institution from us, following an overwhelming vote by the electorate on a public referendum in favour of keeping the Privy Council as our final court of appeal.
Incidentally, in the very same sentence, the British Parliament may also put an end to our silly pretences of claims to the crown. It bears emphasis that the Judicial Committee, from its very inception, has been an institution of colonial governance. Along with its mother institution, the British Crown, the Privy Council has been one of the defining political institutions of the colonial West Indian society. At political independence, we have requested that the British monarch serve as our titular head of state, with its Judicial Committee serving as our final appellate tribunal. Now, near 50 years later (for Jamaica and Trinidad and Tobago), we have come to the conclusion that these anomalies must be corrected. Trinidad and Tobago and Guyana have, since independence, declared themselves to be republican States; when, from the very first moments of political independence, they were, in fact, parliamentary republics. Indeed, there are no monarchies in the Commonwealth Caribbean. We are all, every single one of us, with the possible exception of Guyana, parliamentary republics. However, now, with the exception of Barbados, Belize, and Guyana, we all continue to go to the Privy Council as our final appellate court.
Jamaica and Trinidad and Tobago are two of the constituent powers establishing the CCJ in its original and appellate jurisdictions. They have each contributed considerable sums of money towards the establishment and upkeep of the Court. Therefore, it is hardly revealing for one to proclaim that those countries, which have not yet accepted the CCJ in its appellate jurisdiction, are providing legal justice for their citizens at a tremendous opportunity cost. They are paying huge sums of money for a court they are making virtually no use of. Only Barbados and Guyana are making full use of the Court. Therefore, in a very real sense, they are all paying for Barbados' and Guyana's court. One therefore cannot help but feel that our two Prime Ministers, among others, have failed to grasp the critical importance of the CCJ as the region's final appellate court and, therefore, the urgent need to have the Court accepted in its appellate jurisdiction. Indeed, this has been the central theme of my presentations in the various jurisdictions over the past year, starting with Belize in March 20009 and ending with Suriname and, finally, Trinidad and Tobago in April 2010.
It is a central premise of modern political theory that the power of adjudication is an integral aspect of sovereignty, one of the central competencies of the sovereign State. Therefore, no sovereign people would willingly relinquish this critical aspect of their sovereignty to an institution of another sovereign state, unless forced by circumstances to do so. For our part, at the time of political independence, we lacked both the means and the political will to establish our own final court of appeal; hence our delegation of this office to Her Majesty's Judicial Committee in Britain. Now, some 40-plus years after independence, we have come to the realisation that this anomaly must be corrected. Therefore, in the exercise of our collective sovereign will, we have established the CCJ with original and appellate jurisdictions to adjudicate disputes arising under the Revised Treaty of Chaguaramas, and all cases in law and equity arising under the Constitutions and laws of the Member States. Virtually every member-state subscribes to the original jurisdiction of the CCJ, because it is widely believed that it is the original jurisdiction, which applies exclusively to the adjudication of disputes arising under the Revised Treaty, that would make the Court critical to the successful operation of the Caribbean Single Market and Economy (CSME).
In contrast, the appellate jurisdiction, which applies primarily to cases arising under the Constitutions and laws of the member-states, is deemed to have very little relevance to the success of the CSME.
This, I believe, is a fundamental error on our part. This has resulted in part from our failure to grasp the central role of the highest appellate court, in a democratic society, in framing the political community as it interprets and applies the fundamental political texts of the community in the determination of cases. On this view, the CCJ, as the region's highest appellate tribunal, is indispensable to the success of the CSME by its securing the requisite conditions for the successful operation of a market economy, in its interpretation and application of our democratic Constitutions in the determination of cases.
Democratic constitutionalism
It is submitted that the Commonwealth Caribbean stands in the tradition of written democratic constitutionalism: the idea of a democratic polity constituted and regulated by a written fundamental law containing a set of basic human rights constraining the exercise of the legitimate governmental power by the agencies of the state and defining the relationship between the citizen and the state. But the fundamental law, the constitution, must be given meaning and be put to work in the life of the polity. And one of the principal ways in which this is accomplished is in the act of adjudication; in the determination of cases. Indeed, it is in the act of adjudication and in the writing of the judicial opinion that the process of completion of the constitution is advanced and the polity defined; that a people's authorship of their own fundamental law and the inscription of their sovereignty are signified. For it must be emphasised that it is a fact that the framing of a democratic constitution continues long after the founding moment, in the judicial, political and cultural discourse through which a political community continuously reassesses and reshapes itself.
Democratic constitutionalism therefore anticipates the elaboration of the constitutional text in the judicial and political discourse that marks the adjudication of cases. And, as we have earlier noted, it is a fundamental understanding in modern political theory that adjudication is an integral and an inextricable aspect of sovereignty, one of the essential competences of the sovereign state. And, further, it is by a nation's Supreme Court that ultimate authoritative interpretation of a people's fundamental law is given and the authoritative political texts supplementing the constitution are written. My thesis, then, is that the CCJ, as our final appellate court, has this essential role, in the exercise of its adjudicative office, of serving as one of the authors of our fundamental laws and as constitutional architect of the West Indian Polity. In addition, as the institution with exclusive jurisdiction to interpret and enforce the Revised Treaty of Chaguaramas, the primary law of the Caribbean Community, the CCJ will inevitably play a critical role in the construction of the Caribbean political community.
These authoritative political texts, written by a nation's highest appellate tribunal in the interpretation and application of the constitution in the determination of cases, are the judicial opinions which in turn become part of the canon of constitutional law. In a word, the judges of a nation's highest appellate court are, in a very real sense, some of the titled authors of a people's fundamental law.
When, therefore, we have come to grasp the full import of this, we would realise that, numbered among those titled individuals who currently write West Indian constitutional law are the judges of Her Majesty's Judicial Committee. Consider, for example, the political and legal import of the Privy Council's decisions in Pratt and Morgan, Neville Lewis, Watson, Roodal and Matthews, to name a few. One would hope that Prime Ministers Golding and Persad-Bissessar would heed this.