The CCJ’s long, hard road

It seems that almost every time the subject of the Caribbean Court of Justice (CCJ) comes up, the people responsible for sharing details on its history, design and functioning have to retrace steps executed a million times before.

This would have been much less painful had our legal communities, and those in associated disciplines including journalism, paid greater attention to the vast compendia of data and information disseminated on a consistent basis since the first signing of the CCJ agreement almost 21 years ago.

Much like current pandemic struggles, the real issue has not been a paucity of hard information but of near wilful ignorance, misinformation, and simply not paying attention.

Deep down, it also appears Caribbean people are yet to cross the colonial Rubicon. It’s there, right now, with the transition to republican status in Barbados. It has also been the challenge of countries such as Jamaica and The Bahamas that have publicly kept their Caricom options open.

There’s also the curse of political hypocrisy excused as rational pragmatism. One prime minister signed the agreement to set up the Court then, having lost office, declared a “lack of confidence” in something that was yet to be properly tested.

Another pointed to an absence of “Indian” judges in 2005, in 2012 described it as indispensable in “furtherance of our national sovereignty”, then eventually reverted to dismissing its equal applicability across civil and criminal jurisdictions.

It is thus conceivable that the host country could persist in refusing to sign up to the Court's Appellate Jurisdiction as a final court of appeal, even as it remains by default a signatory to its Original Jurisdiction to settle CSME issues. 

I added this last bit of information since it is not true to assert, as I heard out of Saint Lucia last week and all the time right here in T&T, that there are Caricom countries that are “not part of the CCJ.” It is the kind of ignorance people, even in legal practice, utter too often without contestation.

It is perhaps for this reason, CCJ President Adrian Saunders took pains to relate some simple facts about the CCJ to a Special Sitting of the Joint Houses of Assembly of Saint Lucia on January 20.

Like every other member of Caricom and participant in the CSME, for instance, T&T is automatically a part of the Original Jurisdiction. In fact, there have been several cases defended by this country at the CCJ. So, stop saying T&T “does not use the CCJ.”

Further, T&T does not “fund the Court and doh use it.” Outside of several routine obligations as host country, the CCJ is funded from the proceeds of a US$100 million trust fund. The “proceeds” of the fund, not the initial capital which someone in Saint Lucia speculated was probably already all spent.

The judges and staff of the Court are selected by a Regional Judicial and Legal Services Commission and not by Caricom leaders. The President is selected by the Commission and appointed or rejected by the votes of at least three-quarters of the Heads of Caricom States who are not entitled to propose candidates of their own.

I have spent some time checking the number of cases settled at the Judicial Committee of the Privy Council - so vigorously defended by millionaire attorneys and politicians in T&T - and found that, in 2021, there were just nine such matters. In 2020 there were another nine and, in 2019, 16, and 11 in 2018.

So, let’s get this straight. All this talk about the ethnic makeup of the CCJ bench, the lack of confidence in the quality of judges, and sundry nonsenses are all about a miniscule share of all matters that pass through this country’s magisterial and judicial channels.

Had the passion of objections to the CCJ been applied to fixing broken lower court systems, life could have been a lot different for us.

There have been failed attempts via referenda in St Vincent and the Grenadines, Grenada and Antigua and Barbuda for some of the same reasons of domestic politics, money, interest (low turnouts at referenda), and a lack of paying attention.

Barbados, Belize, Dominica, and Guyana have made the move. Today, the SLP in Saint Lucia possesses the required two-thirds majority to make the constitutional changes in order to usher in the CCJ. They will get there soon.

Over here, bipartisan support is required. To cut a long story short, this is going to be one long, hard road for the CCJ, even in its own hometown.