Judges of the Caribbean Court of Justice (CCJ). Seated from left are: Justices Rolston Nelson (T&T); Michael de la Bastide (T&T); and Duke E.E. Pollard (Guyana). Standing from left are: Justices Jacob Wit (Netherland Antilles); Desiree Bernard (Guyana); Adrian Saunders (St. Vincent and the Grenadines); and David Hayton (The UK)

THIIRTY YEARS after becoming an independent nation, the Eastern Caribbean island of St. Vincent and the Grenadines is gearing for a national referendum that could also remove a constitutional burden to access the Caribbean Court of Justice (CCJ) as its final appellate institution instead of clinging to the apron string of the British Privy Council. 

This could well be seen as a case of finally putting the proverbial cat among the pigeons, setting, as it does, the political precedent for other countries of the Organisation of Eastern Caribbean States (OECS), as well as Jamaica and Trinidad and Tobago, to do likewise. 

Some of these countries also require either a two-thirds parliamentary majority or endorsement by a national referendum to facilitate ditching the Privy Council in favour of the CCJ.

The Vincentian parliamentary opposition New Democratic Party (NDP) of Arnhim Eustace, a former short-term Prime Minister, has already vowed to vigorously campaign against  a ‘yes’ vote at the referendum scheduled for this coming November.

For his part, Prime Minister Ralph Gonsalves, whose governing Unity Labour Party (ULP) already holds a dominant 12-3 parliamentary majority, has warned of a “spirited campaign” to win endorsement of a draft new constitution that provides for a two-thirds majority to amend entrenched constitutional provisions.

For different reasons, neither the government of Jamaica’s Prime Minister Bruce Golding nor that of Trinidad and Tobago’s Patrick Manning is in the mood at present to consider a referendum to endorse constitutional changes to replace the Privy Council with the CCJ — an issue over which members of the legal profession in both countries are also in disagreement.

Trinidad and Jamaica    
In the case of Jamaica, the opposition People’s National Party (PNP), which has always been supportive of the CCJ, will pose no problem whenever the Golding administration chooses to demonstrate serious interest in ending the dispensation with the Privy Council in favour of the now more than four-year-old regional court.

However, in Trinidad and Tobago, where there continues to be controversies — some quite fierce and disturbing for a parliamentary democracy — the government of Prime Minister Patrick Manning cannot look forward to any support from the parliamentary opposition United National Congress-Alliance (UNC-A) to have the CCJ as the country’s final court of appeal.

For, even in their current bitter internal conflicts, the warring factions of the UNC-A continue to harbour deep reservations over the independence of the local judicial system and, regrettably, seem disposed to extending such concerns — without evidence — to the CCJ which, ironically, has its operational headquarters in Port-of-Spain. 

This scenario clearly suits Prime Minister Manning, affording him the comfort of openly lamenting the country’s failure to cut ties with the Privy Council, while pursuing NO serious initiative to have the CCJ as the country’s final appellate institution:  For example, in forcing opposition parties to vote for or against the CCJ, or making it a national referendum issue — as is now being done in St. Vincent and the Grenadines. 

More than four years ago, on April 16, 2005 to be precise, the CCJ was inaugurated amid pomp and pageantry in Port-of-Spain, following settled arrangements for its service to CARICOM as a final court of appeal for participating countries, as well as serving with original jurisdiction in resolving trade disputes arising from interpretation of the Revised Treaty of Chaguaramas.

At the time of its ceremonial inauguration, Barbados and Guyana were the only two member countries no longer tied to the Privy Council, even as Trinidad and Tobago, the operational headquarter of the CCJ, continued to engage in mere platitudes about its importance. 

Today, Barbados and Guyana are still the only two CARICOM countries that are members of the CCJ, soon to be formally joined by Belize, now under the leadership of Prime Minister Dean Barrow,

Pertinent questions
Now seems a good time to ask whether it is fear of not obtaining required parliamentary majority approval or — as is also necessary in a few cases — the endorsement of a national referendum that stands in the way of accessing CCJ membership as their final court.

Or, is it more a case of lack of conviction by some governing political directorates to terminate an inherited colonial dependence on the Privy Council, in favour of the competence and integrity of the CCJ?

There are examples, and not only involving penalty cases, where both governing and opposition parliamentary parties have expediently referenced to prolonged vacillations in accessing CCJ membership.

In so doing, they can hardly be unaware of a preference to demonstrate more faith in the judges of a dwindling Privy Council than in the independence, competence and integrity of the judges of our regional court. 

Just recently, the CCJ made an historic ruling, in accordance with its original jurisdiction powers, in favour of the Caribbean Community in a trade dispute case involving the Trinidad Cement Limited (TCL) in the interpretation of CARICOM’s Common External Tariff (CET). Both the Community Secretariat and TCL were represented by outstanding legal minds of the Caribbean. 

This is court that became a reality after the Caribbean Development Bank (CDB) had successfully fulfilled CARICOM’s request to raise some US$100 million on the money market to help avoid dependence on financial allocations from governments and ensure security of its judges. 

Its critics have come to describe the CCJ as a most costly investment in relation to services provided. They cynically point to low work loads and high salaries and allowances paid to its panel of judges. Even one of its own judges was publicly scolded recently by colleagues for jocularly remarking about his feeling of being on holiday most of the time in the absence of sufficiently demanding work.

The fact is that the CCJ’s workload and efficiency largely depend on the extent of its use by member countries as a court of last resort, and in having original jurisdiction in dealing with trade disputes. Many of these countries, however, continue the colonial attachment with the Privy Council while talking sweetly about its importance in the development of a West Indian jurisprudence.