To­day's Ed­i­to­r­i­al

Since its in­au­gu­ra­tion on April 16, 2005, at the Queen's Hall in Port-of-Spain, the Caribbean Court of Jus­tice (CCJ) has had a fair­ly rough ride. The CCJ was es­tab­lished with two func­tions: an ap­pel­late func­tion in which the court was meant to re­place the Ju­di­cial Com­mit­tee of the Privy Coun­cil and an orig­i­nal func­tion in re­spect of the in­ter­pre­ta­tion and ap­pli­ca­tion of the Treaty of Ch­aguara­mas which es­tab­lished the Caribbean Com­mu­ni­ty. So far, on­ly two of the 15 mem­bers of Cari­com, Bar­ba­dos and Guyana, have done what is nec­es­sary to es­tab­lish the CCJ as the fi­nal court of ap­peal for those coun­tries. In oth­er Cari­com coun­tries this small step, which will mean the abo­li­tion of the Ju­di­cial Com­mit­tee of the Privy Coun­cil, has been im­pos­si­ble to achieve ei­ther be­cause of il­log­i­cal po­lit­i­cal op­po­si­tion or self­ish self-in­ter­est.

An ex­am­ple of the il­log­i­cal­i­ty of the po­lit­i­cal op­po­si­tion comes from this coun­try where Bas­deo Pan­day, who when serv­ing as Prime Min­is­ter on Feb­ru­ary 14, 2001, signed the agree­ment es­tab­lish­ing the CCJ, rat­i­fied the agree­ment and suc­cess­ful­ly lob­bied for the seat of the court to be lo­cat­ed in T&T. In op­po­si­tion for the last eight years, how­ev­er, Mr Pan­day has re­fused to sup­port the amend­ment to the T&T Con­sti­tu­tion to al­low for the abo­li­tion of the Privy Coun­cil and the es­tab­lish­ment of the CCJ as the fi­nal court of ap­peal for T&T. This can on­ly be achieved by a spe­cial ma­jor­i­ty be­cause the es­tab­lish­ment of the Privy Coun­cil is one of the en­trenched pro­vi­sions in the T&T Con­sti­tu­tion. Like T&T, most Cari­com coun­tries re­quire a spe­cial par­lia­men­tary ma­jor­i­ty to fa­cil­i­tate the abo­li­tion of the Privy Coun­cil and the es­tab­lish­ment of the CCJ. But even Cari­com coun­tries which do not re­quire spe­cial ma­jori­ties face ma­jor hur­dles.

In Feb­ru­ary 2005, the Privy Coun­cil ruled that three Ja­maican Acts abol­ish­ing ap­peals to the Privy Coun­cil and es­tab­lish­ing the CCJ as Ja­maica's fi­nal court of ap­peal were un­con­sti­tu­tion­al be­cause they were not passed in ac­cor­dance with the pro­ce­dures laid down in the Ja­maican Con­sti­tu­tion for the amend­ment of its en­trenched pro­vi­sions. This rul­ing by the Privy Coun­cil on its own ju­ris­dic­tion over Ja­maica came de­spite the fact that the pro­vi­sion in the Ja­maica Con­sti­tu­tion deal­ing with ap­peals to the Privy Coun­cil was not en­trenched and there­fore did not re­quire a spe­cial ma­jor­i­ty. But then the Privy Coun­cil, which has a spe­cial place in the hearts of many re­gion­al lawyers, is not al­ways known for its log­i­cal in­ter­pre­ta­tions of re­gion­al laws–as shown in the Pratt and Mor­gan and the Mus­limeen amnesty cas­es.

In the 2005 judg­ment on the abo­li­tion of the Privy Coun­cil, the body al­so ex­press­ly stat­ed that it, sit­ting as the fi­nal Ja­maican court of ap­peal, had no in­ter­est of its own in the out­come of the ap­peal–a most as­ton­ish­ing­ly self-in­ter­est­ed state­ment. For­tu­nate­ly for the re­gion, the CCJ has shown in two re­cent rul­ings in­volv­ing its orig­i­nal ju­ris­dic­tion that it is ma­tur­ing very quick­ly in­to a court that will soon be renowned for its fair­ness and even-hand­ed­ness. In cas­es in­volv­ing the ap­pli­ca­tion of the Com­mon Ex­ter­nal Tar­iff (CET), the CCJ has shown a re­mark­able abil­i­ty to in­ter­pret the Cari­com rules in a way that has al­lowed all par­ties to the le­gal con­flicts–TCL, Ja­maica, Guyana and Cari­com it­self–to walk away from the judg­ments claim­ing some mea­sure of sat­is­fac­tion.

Maybe in its de­vel­op­ment of a re­gion­al ju­rispru­dence, the CCJ has some­thing to teach the Privy Coun­cil. By its de­ci­sions in these two cas­es the CCJ has set out in clear and log­i­cal lan­guage, with full ad­her­ence to the es­tab­lished prece­dents and the ap­plic­a­ble laws, the prop­er pro­ce­dures for coun­tries to fol­low if they wish to amend the CET. These high-qual­i­ty judg­ments should give con­fi­dence to par­lia­men­tar­i­ans across the re­gion that the CCJ can be trust­ed to chart our le­gal des­tiny and that the time may fi­nal­ly have come to end the sov­er­eign­ty of the Eng­lish courts. But will the par­lia­men­tar­i­ans be moved by what the CCJ has demon­strat­ed by these judg­ments?