The CCJ in Judicial Institution Building

• 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: 37-61

The CCJ in Judicial Institution Building

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Chapter TWO

The CCJ in Judicial Institution Building

UNIQUENESS OF THE CARIBBEAN COURT OF JUSTICE

By any rigorous, dispassionate standard of assessment applicable

to regional or international judicial institutions today, it would

be difficult to avoid the conclusion that the Caribbean Court of

Justice is a unique international judicial institution in terms of its

jurisdiction, the institutional arrangements devised for the

appointment, removal and disciplining of its judges and the

mechanism agreed for the financing of its operations. At the

time of this writing, no other regional judicial institution in the

world can lay a claim to being vested with an appellate

jurisdiction in respect of municipal law matters and an original

jurisdiction in respect of international law issues arising in relation

to the interpretation and application of a treaty. The uniqueness

of the Caribbean Court of Justice as a regional judicial institution

would be further enhanced if, as is the case with the Supreme

Court of Canada, it is vested with jurisdiction to determine

appeals from the Member States of the Community with civil

law systems, for example, Haiti and Suriname. Indeed, the

Caribbean Court of Justice is the only regional judicial institution

of its kind in the world whose judges will not be appointed,

directly or indirectly, by the political directorate of the States

participating in the regime. Cases in point are the International

Court of Justice (ICJ), the European Court of Justice (ECJ), the

Court of First Instance of the European Union (CFI), the Andean

The Caribbean Court of Justice

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Court of Justice (ACJ), the Central American Court of Justice

(CACJ), the Court of Justice of the European Free Trade Area

(CJEFTA) and the Court of Justice of the Common Market for

Eastern and Southern Africa (COMESA) (CJC). Financially, too,

the CCJ is likely to be only regional judicial institution in the

world which will be financially independent of the executive and,

by compelling inference, also administratively independent of the

central executives of participating Member States.1

In a very real sense, the unique features of the CCJ are the

product of peculiar historical conditions characterised by deep-

seated suspicions of participating governments, suspicions born

of unfortunate incidents involving the indiscreet employment of

executive power,2 and widespread regional skepticism about the

willingness and readiness of regional governments to contribute

to the budget of the Court on a reliable, sustainable basis in the

light of past experience. Given the historical antecedents of the

initiative to establish a regional court of last resort, especially

those of the last 40 years, public acceptance of the establishment

of a regional court of last resort has to be achieved by dint of

hard work and credible, bankable assurances that commitments

made by Governments in this regard would be respected and

complied with. In the premises, the regional political directorate

were persuaded to maintain a hands-off approach in the

appointment of judges of the Court and to approve arrangements

for funding of the Court well outside the political control and

influence of regional decision-makers.

From the time that a firm, definitive decision was taken by

the Conference of Heads of Government of the Caribbean

Community to establish the Caribbean Court of Justice at their

Eighteenth Meeting in Castries, Saint Lucia, the regional

Attorneys General adopted an inclusive approach to the

elaboration of the CCJ’s constituent instrument and instructed

the CARICOM Secretariat to circulate a draft Agreement to the

presidents of Bar Associations in the Region for their consideration

and reaction. The response was as masterly in its inactivity as it

was resoundingly resonant in its protracted quiescence, and the