The Caribbean Court of Justice: The Need for Confidence Building Measures

• Author: Stephen Vasciannie
• Pages: 568-583

568 REGIONAL GOVERNANCE

The Judicial Committee of the Privy Council is rarely used by citizens of the

Caribbean.1 In terms of distance, it is far removed from the Caribbean, and

its judges, for the most part, are largely unexposed to Caribbean social and

economic realities. Moreover, the original premises that constituted the rationale

for the Privy Council are highly questionable, if not simply offensive to many

Caribbean nationals in an era of self-determination and principled anti-

colonialism. Caribbean States are sovereign, independent entities, and even

casual observation confirms that one of the main appurtenances of sovereignty

is the right to have your own judges making final decisions on appellate matters

arising within your national jurisdiction.2 This is particularly true when, as is

the case in the Caribbean, reputable judges, advocates and academics, with

extensive experience in the law, are in no short supply. Add to this the fact that

in both the Pratt and Morgan3 and Neville Lewis4 decisions the Privy Council

appeared to move unjustifiably down the slippery slope of judicial legislation,

and the prima facie case for abolitions of appeals to London appears almost

insurmountable.

And yet, despite these rather obvious propositions in favour of the abolition

of appeals to the Privy Council, the debate on abolition remains inconclusive in

some parts of the region, especially, but not exclusively, in Jamaica. What can

account for this? And, in view of the resistance to the Caribbean Court of Justice

that remains evident in some member states of CARICOM, is the process of

ratification of the Caribbean Court of Justice to be regarded as politically

premature?

As a starting-point, it may be fair to suggest that some of the opposition to

the abolition of Privy Council appeals is based on Caribbean self-doubt. This

factor was highlighted by the Caribbean Commission in A Time for Action in

The CARIbbeAn COuRT OF JuSTICe:

The need FOR COnFIdenCe

buIldIng MeASuReS

STEPHEN VASCIANNIE

CHAPTER THIRTY - one

The Caribbean Court of Justice 569

1992. First, the Commission pointed out that, as of the time of writing, the

debate on the proposed Caribbean Court had proceeded for over 20 years, and

that in 1988, the CARICOM Heads of Government Conference had taken a

decision to establish the Court.5 For the Commission, therefore, it was

unnecessary “to recapitulate the long discussion that occupied CARICOM at the

level of Attorneys-General, Law Ministers and Heads of Government in this

matter”;6 the time for action had been reached. Thus, the Commission added:

We do not wish to minimise the issues which have characterised the

discussion; indeed, we shall address some of them; but we are strongly of the

view that we cannot, like the characters in a Chekhov play, go on sitting

around tables forever discussing the pros and cons of action and in the

process forever deferring it.7

Then, after expressing support for a Caribbean Court with final appellate

jurisdiction and original jurisdiction for regional questions, the Commission

asserted:

We suspect that there is sometimes an unspoken question. Can the West

Indies produce a Court that will function with the independence and erudition

of the Judicial Committee of the Privy Council? We have not the slightest

hesitation in answering that question in the affirmative.8

The unspoken question – can we do it by ourselves? – may have affected

some of the debate. But, on this point we need to exercise caution. For, it is one

thing to assert that CARICOM countries can, indeed establish a final appellate

court of distinction; but it is quite another to conclude that the Caribbean Court

of Justice in its current form will reflect the qualities that are traditionally

associated with first rate judicial bodies. So then, although we should not ignore

the role which self-doubt may have played in the debate, its significance should

not be overstated: some policy-makers, writers and citizens generally may be

influenced by this psychological remnant of colonialism, but in the main it is

entirely possible for forward-looking, self-confident Caribbean nationals to

raise serious questions about the way in which the Caribbean Court of Justice is

being introduced, and about the current scheme for the court. These questions

and a brief discussion of possible responses to them constitute the core of my

presentation.

The Referendum Issue

As the foregoing quotations from Time for Action indicate, at the levels of

CARICOM Heads and law officers, the issue of the Caribbean Court has been