This week’s column differs with the contention that the demise of the Caribbean Court of Justice will be a major blow against regionalism. This column instead argues that the Court itself suffered a serious blow when at its inception only two countries, later joined by Belize, acceded to the Court’s original and appellate jurisdictions.
The Caribbean Court of Justice (CCJ) has been endorsed by all member states in its original jurisdiction. Thus it provides an avenue of recourse and remedies for member states and their constituents where there are disputes over the interpretation of the Revised Treaty of Chaguaramus, the guiding charter of the regional integration movement.
One company, Trinidad Cement Limited (TCL) has already utilized the Court in this area of its original jurisdiction. It took the Guyana government to the CCJ over a dispute concerning the waiver of the Common External Tariff imposed by Guyana on regional cement. It won that case and Guyana was forced to reinstitute the tariff which provides a form of protection for regional producers.
The Court also is supposed to be the final court of member states for hearing criminal and civil appeals. But this aspect of the CCJ’s original jurisdiction has only been acceded to by Guyana, Barbados and lately by Belize.
So here we have a regional court established by the regional integration movement which is not acceded to by the majority of member states in its appellate jurisdiction. This is where the CCJ suffered the greatest setback. For the very member states in whose names it was formed have spurned the Court.
If the host country of the Court, Trinidad and Tobago, should take the decision to withdraw from the Court in its original jurisdiction, it would simply be granting the final rites to this institution which has been affected by the failure of most regional countries to accept the Court as the final Court of Appeal.
Those who have not done so have had their reasons.
In some cases, it simply was not a call of the governments. For example, in Jamaica, a constitutional hurdle stood in the way of accession and without the support of the then main opposition, the then government could not commit to the CCJ in its appellate jurisdiction. The fact, therefore, that most of the countries of the region were unable to have the CCJ at its inception as their final court of appeal, was perhaps the most telling blow against the institution.
It made a mockery of the regional integration process and demonstrated clearly that the formation of the court was a major step for which all member states were not fully committed or unable to move forward with.
So, if by referendum, the people of Trinidad and Tobago decide that they are comfortable with the Privy Council, or concerned about the huge bill they are required to foot as a result of hosting the CCJ, that country should not be blamed if whatever the result, the CCJ has to close its doors. Any collapse of the CCJ must not be laid at the feet of a host country which may feel that there is a problem with it having to provide substantial expenditure for a court which it does not accept as its final court of appeal.
The government and people of Trinidad and Tobago have every right to question the use of taxpayers’ funds for the hosting of the CCJ. They have every right to decide that they are comfortable with the Privy Council. If the CCJ collapses because of financial constraints, the region must accept collective responsibility for such a fate.
Whatever decision is taken by the government and people of Trinidad and Tobago over the funding for the Court, it may be difficult for that country to withhold funding, for it is contractually, as a member of CARICOM, obligated to provide support for such a Court.
It would be unfortunate if the CCJ suffers the same fate as the Federation, but it has in its short history shown that it is not the quality of its jurisprudence that is in question, but rather the commitment of the governments and people of the region towards the Court. The jurisprudence of the Court has been of an exceptionally high standard. Its decisions have demonstrated that the Court possesses the competence to become the final court of appeal for all regional countries.
The real challenge, therefore, is not about finances, but about the need for the governments and people of the region to overcome whatever constitutional and political hurdles exist towards the goal of having one single Court, the Caribbean Court of Justice, as the final court of appeal for all member states of CARICOM.
Funding is important for the survival of the Court. But not as important as the political will that is needed to ensure that all member states get onboard. The funds can always be found to cover any shortfall, but when there is a deficit in membership, then the very credibility of the Court suffers.
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