The Preparatory Phase of the Court

• 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: 1-36

The Preparatory Phase of the Court

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Chapter One

The Preparatory Phase of the Court

GENESIS AND METAMORPHOSIS OF THE CARIBBEAN

COURT OF JUSTICE

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

supplied).

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

Government;

(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