Over the last year and especially since the passing of the no-confidence motion in Parliament in 2019, the Caribbean Court of Justice (CCJ) has been featuring in the news. Many people who talk glibly about the CCJ, however, have little or no knowledge of what it is or even where it is. The interest in the Court generated by the recent political cases brought before it provides an opportunity for informing the public about the Court.
Before we touch on the activities of the Court it is useful to explain what the Court is: In colonial times, it was the final Court of Appeal for the West Indies and other parts of the British Empire was the Privy Council in England. In its appellate jurisdiction, it dealt with both criminal and civil matters and its decisions were highly regarded and generally became precedents.
When the West Indian colonies were granted their Independence by Britain, it was expected that they would establish their own Appellate Jurisdiction; in the meantime, they were permitted to continue to use the Privy Council as their final Court of Appeal. The Privy Council itself had preferred that these former colonies use their own Appellate Jurisdiction and had made this known.
In 2002, 12 CARICOM states including Guyana, as part of the Revised Treaty of Chaguaramas, signed the agreement setting up the Caribbean Court of Justice (CCJ). A few states signed with some reservations but Prime Minister Basdeo Panday signed without any provisos on behalf of Trinidad and Tobago. It was agreed that the Court should be established in Port-of-Spain, capital of Trinidad and Tobago. To avoid any political influence being exerted on the Court, it was decided that the Court would not be financed by the national exchequers but rather by a loan of US$100,000,000 to be serviced by the signatories. The Court has been meeting its expenses by drawdowns from this loan and up to last year, it was still in a strong financial position.
The Court has two jurisdictions – its Original Jurisdiction and an Appellate Jurisdiction. In its Original Jurisdiction, it is an International Court with exclusive jurisdiction to interpret and apply the rules set out in the Revised Treaty of Chaguaramas and to decide on disputes arising under it.
In its Appellate Jurisdiction, it is the final court of appeal for criminal and civil matters for those CARICOM states who have amended their Constitutions to enable the CCJ to perform that role. At the moment, five states have acceded to the Appellate Jurisdiction – Barbados, Belize, Dominica, Suriname and Guyana. It is expected that in due course, the other states will accede to the Court’s Appellate Jurisdiction since by signing and ratifying the Agreement they have indicated their commitment to making the CCJ their final Court of Appeal. Though CARICOM’s two most populous states, Jamaica and Trinidad and Tobago have not as yet acceded to the Appellate Jurisdiction, the majority opinion in both states is for moving away from the Privy Council and using the CCJ.
The main reason why some persons wish to cling to the Privy Council is that they believe the CCJ may be subject to local political and other influences and as such some decisions may show bias. Many argue, on the other hand, that the Privy Council is the last vestige of colonialism and full Independence would come only when a state moves away from it. And there are other more practical reasons: It is far more expensive to go to the Privy Council than to the CCJ; keeping the Privy Council and not using the CCJ denies poorer folk appellate justice since they would be unable to meet the costs of going to the Privy Council; the judges of the Privy Council have little idea of the nuances of Caribbean Jurisprudence or Caribbean Society and may sometimes co-opt a Caribbean judge or decline to adjudicate a Caribbean case.
The CCJ consists of seven judges and at present, five are Caribbean and two are foreign-born. Since its establishment, the Court has been able to attract judges of the highest calibre and the recruitment process is a very exacting one with a panel from various parts of the Caribbean. In its short existence, the Court has won for itself much respect from legal circles and the ordinary Caribbean citizen.
Guyana has been using the Court more than any other state in many different types of matters. The Court has adjudicated in several important land matters, giving valuable precedents. Of more recent years, it has considered several political and constitutional cases which have been amply reported in the media. it has also protected the rights of ordinary Caribbean citizens against the state as in the Myrie case against Barbados and the TCL case against Guyana. Probably, one of the most interesting appeals heard by the Court was that brought by four transgender persons who were convicted of cross-dressing, an offence for which the Guyana Courts from the late 19th century had convicted as of course. Many thought that these cross-dressers had little chance of their appeal being upheld. In allowing the appeal, the Court declared that the impugned section violated the appellants’ right to equality, non-discrimination and freedom of expression and that Section 15 3(1)(xlvii) was unconstitutionally vague and offended the Rule of Law. This decision has moved the Law affecting the LGBT community further than Parliament has so far done.