Closing the Circle of Independence

• Author: Duke Pollard
• Profession: Director of the CARICOM Legislative Drafting Facility and one of the principal consultants on all development aspects of the Caribbean Court of Justice on which he now sits as a Judge
• Pages: 196-257

The Caribbean Court of Justice

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Chapter seven

Closing the Circle of Independence

THE GESTATION PERIOD

The termination in 1945 by the leading free market economies of

the world of the widespread destruction of private and social

capital and the genocidal atrocities by the combatants,

euphemistically referred to as the Second World War, and the

commencement of the Cold War, as exemplified and

institutionalised in the establishment of the North Atlantic Treaty

Organisation (NATO) and the Warsaw Pact, coincided with an

internecine struggle for the winning of the minds of the

uncommitted political entities emerging from colonialism in the

mid-twentieth century. In the extremely volatile international

political atmosphere existing at this time, the Colonial Office in

London was indisposed to grant political independence to the

fragile economic entities of the Commonwealth Caribbean except

in a federalised political system that promised plausible

expectations of economic viability and sustainability – hence the

disastrous federal experiment between 1958-1962 allegedly

imposed by Whitehall. A changing attitude on the part of the

Colonial Office, however, resulted in a successful bid for political

independence by Jamaica and Trinidad and Tobago in 1962 which

was followed by a mad rush for political independence by Guyana

and Barbados a few years later, followed by the entities in the

Windward and Leeward Islands which subsequently coalesced

to create the Organisation of Eastern Caribbean States in 1981.1

Closing the Circle of Independence

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However, independence for the political entities of the

Commonwealth Caribbean stopped short at autonomous

decision-making in political and economic affairs and did not

include autonomy of decision in judicial matters. Indeed, this

arrangement appeared to be acceptable for both the former

colonial power which saw it as a means of continuing control,

and the political leaders of the emergent independent states who

regarded it as an emollient for the disquiet of political opponents.

And so the Judicial Committee of the Privy Council continued to

be the court of final appeal for the independent states of the

Caribbean Community which came into being with the conclusion

and ratification of the Treaty of Chaguaramas in 1973.2 Growing

confidence in their ability to manage their own affairs and the

establishment of several regional institutions in the post-federation

period, including the Council of Legal Education in 1970,3

witnessed intermittent but earnest calls for the patriation of the

court of final appeal to the Caribbean Community.

Commencing with a proposal in that behalf by the Jamaican

delegation at the Sixth Meeting of the Conference of Heads of

Government in 1970, the call for the establishment of a regional

court of last resort in substitution for the Judicial Committee of

the Privy Council was made in the Report of the Representative

Committee of the Organisation of Commonwealth Caribbean

Bar Associations (OCCBA) in 1972 and reiterated by the West

Indian Commission in its report, Time for Action, which was

published in 1992. Before this, the Commission on Constitutional

Reform set up by the Government of Trinidad and Tobago under

the chairmanship of Sir Hugh Wooding in 1974 recommended

the establishment of a court of last resort in the Region.4 A similar

call was made by another constitution Commission of Trinidad

and Tobago in 1987. In fact, every constitutional Commission

appointed in any Commonwealth Caribbean country since 1974

has recommended severance of ties with the Privy Council.5 Calls

to close the circle of independence by asserting the right to

autonomous judicial decision-making in the Caribbean

Community were made by the various political, legal and

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academic personages in the Caribbean Community during the

last three decades of the twentieth century.6

However, it would appear to be overly rash and simplistic to

assume that calls to close the circle of independence were

unopposed by important stakeholders of the justice sector in the

Region. Indeed, the most resolute and enduring opposition to

patriating the final court of appeal came from the regional private

Bar, some of whom entertained legitimate and genuine concerns

about the independence and financial sustainability of a regional

court of last resort. Nevertheless, unsubstantiated allegations

persist in some quarters of the Region that the most virulent

detractors of the Caribbean Court of Justice have a private

agenda which does not coincide with the lofty ideals of the

staunchest supporters of the Caribbean Court of Justice. In the

cut and thrust of the regional debate on this issue, however, the

present commentators owe it to future generations of the Region

to address the more important generalised perceptions on both

sides of the institutional divide in order to validate a balanced

and informed perspective of what promises to be one of the most

innovative experiments in international institutional relations.

The decision of the Conference of Heads of Government on

February 14, 2001, in Barbados, to conclude the Agreement

Establishing the Caribbean Court of Justice must be perceived

as a defining moment in the historical development of the

Commonwealth Caribbean States. In the present submission, it

ranks in importance with the conclusion of the Treaty of

Chaguaramas on July 4, 1973, establishing the Caribbean

Community and Common Market and the decision of the

Conference of Heads of Government of the Caribbean

Community reached in Grand Anse, Grenada, in 1989 to revise

the Treaty of Chaguaramas in order to establish a CARICOM

Single Market and Economy. For the decision to establish a

Caribbean Court of Justice with an appellate jurisdiction in

substitution for the Judicial Committee of the Privy Council was

in effect a long-awaited determination to sever the last visible

vestiges of the colonial link with Britain and to assert the inherent