The Preparatory Phase of the Court

AuthorDuke Pollard
ProfessionDirector 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
The Preparatory Phase of the Court
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Chapter One
The Preparatory Phase of the Court
Hugh Rawlins in his publication, The Caribbean Court of Justice:
The History and Analysis of the Debate,1 discerned different
periods in the evolution of an acrimonious debate on the
establishment of a court of last resort for the English speaking
Member States of the Caribbean Community. Commencing with
a period of intense intellectuality, the regional debate on the
establishment of the Court traversed interrupted periods of sober
rationalisation and introspection, comprehended periods of
excessive emotionalism and chauvinism and culminated in a
period of careful premeditation and bold, innovative, imaginative
decision making. Without challenging the accuracy or credibility
of these perceptions, the reality is that the elaboration of the
Court’s constituent instrument did not appear to have been
influenced significantly by its operational environment. In fact,
the general contours of jurisdictional competence contemplated
for the Court appear to have been devised independently of
perceived changes in the relevant environment and remained
largely unaffected in their essential attributes. However,
important adjustments were required to be made in the supportive
institutional arrangements for the achievement of the strategic
objective – establishment of an independent Caribbean Court of
Justice on a financially sustainable basis.
The Caribbean Court of Justice
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Thus, as early as 1972, the Representative Committee of the
Organisation of Commonwealth Caribbean Bar Associations
(OCCBA) set up to examine and report on the establishment of a
Caribbean Court of Appeal in substitution for the Judicial
Committee of the Privy Council, recommended the establishment
of a Caribbean Court of Appeal. The Representative Committee
also recommended that the Court of Appeal should be vested
with an original jurisdiction in respect of the interpretation and
application of international instruments like the CARIFTA
Agreement.2 And this is essentially the jurisdictional configuration
of the Court as it exists today. Some important modifications
have been made to the institutional arrangements contemplated
for the Court, designed in large measure to address persuasively
espoused legitimate concerns about its structure and operation
in order to devise an institution which would command the public
confidence and support of stakeholders, including the regional
private Bar. Whether competent decision-makers have succeeded
in this endeavour only history will judge. But the purpose of this
chapter is to delineate the genesis and development of the Court’s
principal constituent instrument which is the Agreement
Establishing the Caribbean Court of Justice, hereinafter called
‘the Agreement’ and to focus on the attributes which particularise
it as a unique judicial institution in the development of
international institutions.3
At its Eighth Meeting, the Conference of Heads of
Government considered Paper HGC 87/8/13 which contained a
‘proposal by the delegation of Trinidad and Tobago for the
establishment of a Caribbean Court of Appeal as a final appellate
Court for Member States of the Caribbean Community … in
place of the Judicial Committee of the Privy Council.’4
Interestingly enough, the Paper maintained, inter alia,
that in the field of law, Caribbean jurists have long ago attained
the maturity, competence and distinction to man a Caribbean
Court of appeal with honour. In addition, there was the direction
in which the development of English law and institutions have
been pointing which must compel the Region to take charge of
its jurisprudential destiny and move towards a West Indian
The Preparatory Phase of the Court
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jurisprudence, bearing in mind the existence of the regional
University, which was preparing young lawyers to carry on a
legal tradition that had not been indigenised.5 (emphasis
The Paper also submitted
that the presence and activities of a Caribbean Court of Appeal
in the Region would not only give a significant thrust to
cementing the integration of the Region, but it would serve as
well as a reliable instrument for forging and moulding its most
precious asset, viz. its peoples’ strong and steadfast attachment
to law, liberty and justice.5
At the termination of the consideration of the proposal of
Trinidad and Tobago, Conference:
Agreed that –
(i) Attorneys-General of Member States be mandated to
undertake further study of the matter and make
recommendations to the Conference of Heads of
(ii) the Attorneys-General should consult with the judiciary and
bodies representative of the legal profession;
(iii) the Attorneys-General should also consider the feasibility
of providing a mechanism for adjudicating and settling
disputes between Member States arising out of Treaty
obligations relating to CARICOM arrangements between
Member States.6
It would appear that the CARICOM Secretariat prepared a draft
Inter-Governmental Agreement in response to the determination
of Conference reached at its Tenth Meeting for consideration by
the Sub-Committee of Attorneys General established by the
Standing Committee of Ministers responsible for Legal Affairs
(SCMLA). This draft Inter-Governmental Agreement on the
Caribbean Court of Appeal, which was examined and approved
by the Sub-Committee of Attorneys General, provided, inter alia,
for the appointment of the President of the Court by the
Conference of Heads of Government and for the establishment
of a Regional Judicial Service Commission to appoint the other
Justices of Appeal of the Caribbean Court of Appeal. This draft
Inter-Governmental Agreement was considered by the Conference

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