The Caribbean Court of Justice: Challenge and Response

• Author: Hon. Mr. Justice Duke Pollard
• Pages: 186-204

186 CSME: Genesis and Prognosis

“ … the case for a Caribbean Supreme Court could be based on the

need for a regional Court of last report to apply laws incorporating

a collective regional ethos, reflecting the moral imperatives of the

Caribbean social reality and amenable to interpretation by judges

who would have internalized the values informing the content of

that social reality.”

Duke Pollard

CARICOM Perspective, June 1998

The Draft Agreement Establishing the Caribbean Court of Justice must

be perceived as constituting the measured institutional response of competent

decision-makers in the Caribbean Community to a challenge which persisted

in the Region for several decades. This challenge is multi-faceted,

comprehending dimensions which include juridically misconceived appeals

to sovereignty, genuine concerns about autonomous judicial decision-making,

the legal erudition of potential incumbents and the financial insecurity of an

indigenous Court of last resort. All of these issues were ventilated by both

members of the Judiciary and the private Bar at a symposium organized and

sponsored by Caribbean Rights in Bridgetown, Barbados on 28 November

1998, and will be employed as the point of departure for much of the discussion

which follows.

Among the more ardent proponents of the argument that an indigenous

Court of last resort is necessary to complete the independence of Member

States of the Caribbean Community is Mr. Justice Telford Georges. The learned

judge maintained:

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14 The Honourable Mr. Justice Duke Pollard

THE CARIBBEAN COURT OF JUSTICE:

CHALLENGE AND RESPONSE*

187

The CCJ: Challenge and Response

“(s)tarkly put, it appears to me that an independent country should

assume the responsibility for providing a court of its own choosing

for the final determination of legal disputes arising for decision in

the country. It is a compromise of sovereignty to leave that decision

to a court which is part of the former colonial hierarchy, a court in

the appointment of whose members we have absolutely no say. The

counter argument is that … on achieving independence the countries

(of the Caribbean) had a choice of either allowing appeals to an

external court to continue or of abolishing them. It is therefore not a

derogation from sovereignty to allow appeals to continue. It was in

effect an exercise of that right. I think this is the type of argument

which the average person would call a lawyer’s argument. It asserts

that it is an exercise of sovereignty and of independence to choose a

situation of dependency. In real life, any one who behaved in that

way would evoke pity and exasperation, like the grown man who

demonstrates his independence by continuing to live free at home.”

However, from the perspective of the norms applicable to State interaction

in the international community, it appears to be in the nature of an axiomatic

juridical postulate that the essence of sovereignty is the faculty to compromise

it, and, as postulated, the sovereignty argument is based on the wrong

conclusion for the wrong reason.

As the quotation at the commencement of this article suggests, the case

for an indigenous Court of last resort may be persuasively advanced without

an appeal to popular sentiment by reference to our colonial past. Nor should

lawyers resile from employing lawyer’s arguments to demonstrate the

relevance of legal rules. Indeed, the layman’s inability to appreciate such

arguments should not be more a cause of concern than the lawyer’s inability

to grasp the mathematical complexities of Einstein’s theory of relativity nor

the scientific implications of Newton’s corpuscular theory of light.

And in this context, it does appear to be less a construct of Cartesian

logic than an incident of special pleading to introduce at this juncture of the

debate a simile whose pertinence for addressing socio-attitudinal phenomena

appears to be unimpeachable but which is unlikely to be accorded any

persuasive value in analyzing inter-state relations governed by generally

accepted norms of international law.

An issue of considerable and continuing concern to the private Bar in the

Caribbean Community is the insulation of the Caribbean Court of Justice

(CCJ) from political manipulation. In the present submission, this concern is