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?