FOR THE CCJ

The CCJ should be our final court of appeal because, one, the Privy Council have publicly supported the formation of the Caribbean Court of Appeal, two, the CCJ allow us as a country to cast aside the perpetuation of colonialism; three, this venture will help unite the Caribbean to strengthen our region, she argued. Durand also posited that that the CCJ is a better choice financially and the CCJ will contribute towards a uniformed jurisprudence for the region by providing legislature that is relevant and unique to the region.

The CCJ has one big advantage for Jamaicans. The cost to litigants would be reduced considerably by travelling to Trinidad, the present location of the CCJ, instead of going to the Privy Council which is located in England. I gather that there are plans for the CCJ to sit in each of the member states occasionally, which would cut the cost even more. Leaving the Privy Council may open the way for the death penalty to be carried out in Jamaica after the accused has exhausted all the processes of appeal. Many people in Jamaica think the carrying out of the death penalty will make a major contribution to the effort to reduce violent crime. The Privy Council is fiercely against the death penalty and it has said so repeatedly. At present there is no chance of the death penalty being carried out so long as Jamaica is connected to the Privy Council.

AGAINST THE CCJ

First speaker, Thomas, stated in support of the DSC position, Can we then compare a court that has held water to a court that is barely out of its amniotic sac? Being around for as recently as 2001? Absolutely not! It is wise to firstly observe the operations of the CCJ before making assumptions. The Privy Council is a court of appeal that has served us wonderfully as we say locally never leave whey you haf for what you no see. Thomas also argued, the possibility of influence and bias decision making under the CCJ would take away from its function and therefore cannot be better. CCJ as the final appellate court. They would like to know whether it can offer the high standard of jurisprudence as the Privy Council. The Privy Council has served justice well in Jamaica and saved a few from the gallows over the years. There is a large body of public opinion that does not want to see it go. There have been many cases where the Appeal Court in Jamaica has misstepped and the Privy Council saved the day and life of the appellants.

CASE- A classic example was the bank murder in St Ann many years ago. The man was charged with the murder, was tried by the Circuit Court, found guilty and sentenced to death. His appeal to the local Court of Appeal was dismissed and he took his case to the Privy Council and won. A vital piece of evidence - a video tape of the robbery - was hidden by the prosecution but the Privy Council called for the tape. No one in the tape resembled the accused and the appeal was allowed. The accused had spent many years on death row. The argument has been adduced that Caribbean judges lack the wisdom of judges of the Privy Council, but wisdom does not reside only in London. Judges can be found in the Caribbean who have the character, learning, integrity and impartiality and are as good as judges in any part of the world. Questions have been raised about the resilience of Caribbean judges to resist political pressure. I think over the years Caribbean judges have shown that they can. what is justice? Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, equity and fairness, as well as the administration of the law, taking into account the inalienable and inborn rights of all human beings and citizens, the right of all people and individuals to equal protection before the law of their civil rights, without discrimination on the basis of race, gender, sexual orientation, gender identity, national origin, color, ethnicity, religion, disability, age, or other characteristics, and is further regarded as being inclusive of social justice.[2][3][4] History The Caribbean Court of Justice (CCJ; Dutch: Caribisch Hof van Justitie; French: Cour Caribenne de Justice[1]) is the judicial institution of the Caribbean Community (CARICOM). Established in 2001, it is based in Port of Spain, Trinidad and Tobago. The CCJ sits at 134 Henry Street in Port of Spain. The Caribbean Court of Justice has two jurisdictions: an original jurisdiction and an appellate jurisdiction: In its original jurisdiction, the CCJ interprets and applies the Revised Treaty of Chaguaramas (which established the Caribbean Community), and is an international court with compulsory and exclusive jurisdiction in respect of the interpretation of the treaty. In its appellate jurisdiction, the CCJ hears appeals as the court of last resort in both civil and criminal matters from those member states which have ceased to allow appeals to the Judicial Committee of the Privy Council (JCPC). As of 2011, Barbados, Belize, and Guyana have replaced the JCPC's appellate jurisdiction with that of the CCJ.

In the aftermath of the collapse of the Federation of the West Indies, which had lasted a mere four years, from 1958 to 1962, the Anglophone continental and insular Caribbean states formed CARIFTA (the Caribbean Free Trade Association), with a view to maintaining an economic link among the various former and continuing colonies of the United Kingdom after the collapse of the political bond. On 1 August 1973, the successor to CARIFTA, the Caribbean Community and Common Market, better known by its acronym, CARICOM, came into being. The founding document of CARICOM, the Treaty of Chaguaramas, was signed by the so-called "Big Four" states: Barbados, Jamaica, Guyana and Trinidad & Tobago, all of which had gained their political independence from the UK during the 1960s. This signing was the starters signal for a more mature, though at times slow and halting process of regional integration among the states of the Commonwealth Caribbean.

History 2 In 1973, the Treaty of Chaguaramas, establishing the Caribbean Community and the Common Market (CARICOM) came into being. This Treaty has since been revised to take into account changes in the global trading environment and the establishment of the CARICOM Single Market and Economy (CSME). Since disputes will inevitably arise under the revised Treaty establishing the CSME, CARICOM Member States saw the importance of establishing a competent entity to resolve those disputes and develop a body of community law. As long ago as the 1970s, the Organisation of Commonwealth Caribbean Bar Association (OCCBA), based on a study it has conducted, reported the need for a Caribbean Court of Appeal as the final Court of Appeal for the Commonwealth Caribbean. In 1972, the OCCBA recommended the establishment of such an institution, and, the West Indian Commission which was set up, among others, "to formulate proposals for advancing the goals of the Treaty of Chaguaramas which established the Caribbean Community and Common Market (CARICOM) in 9973" later advanced the idea in its recommendations contained in the 1992 - Time for Action. The Commission pointed to the need for a Caribbean Supreme Court with original Jurisdiction to deal with disputes arising under the Treaty establishing the Caribbean Community. The report stated that the Court was a necessary institution for Caribbean independence and the development of an indigenous jurisprudence and it was against this background that, at the Nineteenth Meeting of the Conference of Heads of Government of the Caribbean Community it was agreed that "A Caribbean Court of

Appeal should be established to replace the Judicial Committee of the Privy Council as the final appellate court for the Commonwealth Caribbean." A decision later made resulted in the renaming of the institution to the Caribbean Court of Justice (CCJ). The CCJ will be the final court of appeal from civil and criminal decisions of the Courts of Appeal of those Member States of the Caribbean Community (CARICOM) which presently send appeals to the Judicial Committee of the Privy Council. By bringing the Court to the people, the CCJ will enhance access to justice in terms of reducing distance and expense for populations of the Caribbean Community and will have the challenge of establishing respect as the binding authority of its decisions, while assuring public support and confidence in its administration of justice. As an Appeal Court, the CCJ is designed to give moral leadership to our societies. As an international Court, the CCJ will ensure that the regional international movement develops along a structured, sustainable and rule-based entity. More importantly, as the tribunal responsible for interpreting and applying the Revised Treaty of Chaguaramas establishing the Caribbean Community, including the CARICOM Single Market and Economy, the CCJ will be the guarantor of the rights of national, accorded by the Revised Treaty. Important rights in this context are the rights of skilled professionals to practice their professionals in any jurisdiction of the Community and for artisans and other specified categories of skills to provide services as independent contractors in any area of the Caribbean Community. The Court will function in two jurisdictions - an original jurisdiction and an appellate jurisdiction. The CCJ in its appellate jurisdiction will apply the laws of the Member States from which they are hearing appeals. In the exercise of its original jurisdiction, the CCJ will be performing the role of an international Court, applying rules of international law in interpreting and applying the revised Treaty of Chaguaramas. In terms of staffing, the Regional Judicial and Legal Services Commission is established and has responsibility for the appointment of Judges and other Court employees. The Court will comprise a president who will be chairman of the Commission and at least nine judges and will also determine wages, salaries and conditions of work. A trust Fund has been set up to finance the Court and is intended to insulate it from political interference and will be managed by a board of trustees. The Agreement Establishing the Fund has entered into force with its signature by Members at the Twenty-Fourth Heads of Government Conference held in Montego Bay, Jamaica.

The seat of the Court is in Trinidad and Tobago but as the circumstances warrant, the Court may sit in the territory of any other Contracting Party.

History 3 The CARIBBEAN COURT OF JUSTICE Background Paper prepared and submitted by the CARICOM Secretariat INTRODUCTION The idea of having a Caribbean court as the final court of appeal was first proposed at the Sixth Meeting of Heads of Government of the Caribbean Community in April 1970 in Jamaica. It was proposed to substitute or replace the Privy Council as the final court of appeal for CARICOM Member States. Since then, there has been open debate on the pros and cons on having such a court. All the while, the matter was being considered by CARICOM committees and after various studies and recommendations, a firm decision was made by the Heads of Government at the Tenth Meeting of Caricom in Grand Anse, Grenada in 1989 to establish a Caribbean court. In 1992 the West Indian Commission was mandated to formulate proposals by which a course could be charted for the Caribbean in the community of nations, into the twentyfirst century. It interviewed West Indians far and wide and listened to their concerns. In its celebrated Report "Time For Action" it recommended the establishment of a Caribbean Supreme Court in substitution for the Privy Council.It also recommended that this Court be vested with Original Jurisdiction to hear and adjudicate on disputes concerning the interpretation and application of the Treaty of Chaguaramas as Revised by the nine Protocols. Most detractors of the Court tend to recognise the Appellate jurisdiction of the Court only. They have failed to note the importance of the Original jurisdiction in the success of the Caricom Single Market and Economy regime and the role it will play in the strengthening of the integration movement. The present state is that there is a vigorous drive to have the Court established by the Member States of Caricom. A Project Unit has been tasked with the responsibility of ensuring its establishment .The Project Unit is conducting a Public Education Programme [PEP] to enlighten the various Caribbean publics about the Court. This requires a co-ordinated effort on the part of National Committees, which have been formed in the various Member States to promote the Court. Each National Committee has been supplied with a diskette containing all the instruments of the Court, which would assist them in having debate, television programmes, radio call-in shows and

other media in getting the message across about the Caribbean Court of Justice. A Public Relations Consultant firm has been contracted to work with the Project Unit. The purpose of this paper is to provide basic information and guidance on the Caribbean Court of Justice to assist those participating in the Rotary's Model CARICOM Youth Summit to elucidate and expand on the issues in respect of the Court.It is not intended to discuss every aspect of the Court but to provide sufficient information for meaningful debate. The Establishment of the Court The CCJ will be set up through a number of Instruments, chief of which is the Agreement to Establish the CCJ. It contains all the main provisions. Part 1 establishes the Court with: Original and Appellate Jurisdictions The Seat of the Court The Seat of the Court will be located in Trinidad and Tobago. However, the Court may sit in the territory of any other Contracting Party as circumstances warrant. The Constitution of the Court The Establishment of the Regional Judicial and Legal Services Commission. It sets out its composition and responsibility for appointment and discipline of judges of the Court, except the President. Tenure of Office of judge Oath of Office Part II: Original Jurisdiction International Law is the law to be applied by the Court in the exercise of its Original Jurisdiction. Articles 1X(a) and 1X(f) give the CCJ exclusive and compulsory jurisdiction to hear and deliver judgment on disputes concerning the interpretation and application of the Treaty. The Revised Treaty of Chaguaramas will create a macro economic climate to counter the threat of globalisation in the Caribbean. This Revised Treaty will establish The Caricom

Single Market and Economy. The Treaty, as revised by the nine Protocols, will confer rights and impose obligations on States and States parties and it is envisaged that the Original jurisdiction of the Court will be occupied the most. Where a court or tribunal of a Member State is seized of an issue whose resolution involves a question concerning the interpretation or application of the Treaty, the court or tribunal shall refer the question to the CCJ for determination before delivering judgment. The purpose of this provision is to ensure certainty in the law. Business persons seeking to invest in this macro-economic environment need to predict outcomes. To further cement this aspect for certainty, the Agreement provides for stare decisis or judicial precedent. This is not a concept of International Law but is adopted to ensure certainty. The doctrine of stare decisis or judicial precedent requires the Court to pronounce in the same manner provided the circumstances of the case are similar to one which was heard already. Another feature of the Agreement is that it allows nationals or individuals to pursue claims against a state. International Law only recognises states as subjects. Therefore in an action before an International tribunal the parties would be States. For example State A v State B. Locus standi allows an individual the opportunity to apply to the CCJ for special leave under certain conditions to espouse his action against a State. Part II of the Agreement also provides for: Advisory Opinions by the Court Compliance with judgments of the Court Compulsory jurisdiction of the Court Application of International Law Intervention by Third Parties Application for Interim Measures Revision of Judgments Rules of Court Alternative Dispute Resolution Part III: Appellate Jurisdiction The CCJ in exercise of its appellate jurisdiction is a Superior Court of record with such jurisdiction and powers conferred on it by this Agreement or by the Constitution or other law of a Contracting Party. Appeals shall lie to the Court from decisions of the Court of Appeal of a Contracting as of right, with leave, or with special leave of the CCJ itself. A person may appeal from a civil or criminal matter.

This Appellate jurisdiction is the same which is presently exercised by the Privy Council and which is enshrined in the Constitutions of all independent Member States. A lot of debate is being generated under the Appellate jurisdiction. The recommendations of the West Indian Commission Report "Time For Action" predated the landmark decision of the Privy Council Pratt and Morgan by about a year, yet critics blur the truth by stating that the CCJ is being hastily established to carry out capital punishment. Since the decision of Pratt and Morgan, the Privy Council has been adjusting its criteria to embrace such matters as physical conditions in prison and prisoners' appeals to the Inter- American Commission on Human Rights (IACHR). In the recent decision in the Jamaican case of Lewis etal v R, the Privy Council reversed itself from a position it once held .The Privy Council held that murder convicts who apply to the Governor General for commuting of their death sentences, must have the right of representation before the local Jamaican Privy Council and must be provided with all the material used by the body to arrive at its decision. The Privy Council also held that in cases where convicts have petitioned the IACHR, the recommendations of that the Jamaican Privy Council should take body into account. Lord Hoffman in his dissenting judgment stopped short of accusing his four colleagues of : - being influenced by their own opposition to the death penalty - appropriating to themselves the role of the legislature and warned that frequent changes in ruling could undermine the administration of justice in the Caribbean. This decision is seen as a backdoor attempt by the Privy Council to abolish capital punishment in the Caribbean.It has also given a new filip to the debate for the CCJ to be established by Member States of Caricom. Others have a contrary opinion. What do you think? Lord Browne-Wilkinson the President of the Privy Council is reported to have said in an interview published in the May 1999 issue of The Lawyer, that appeals from the Caribbean should end. Death row had created a burden on the time and resources of the court. He urged the Caribbean to establish its own final court of appeal. Part 111 of the Agreement contains other important provisions. Financial Provisions

Every State that is a signatory to the Agreement has to pay its proportionate share of expenses of the CCJ. Ministers of Finance of the signatory States are mandated to make provision in their National Budgets for the first 5 years. A Trust Fund is being established for the purpose of sustaining the operations of the court and will be administered by the Caribbean Development Bank. Contracting Parties are required to put up a Bond in the amount of their assessed contribution for the first 5 years. Failure to pay future contributions shall lead to forfeiture of the Bond. The past history of contributions by Caribbean States to regional institutions has not been very good and the above mentioned provisions are seen as a way of ensuring contributions to the CCJ.Non payment by a State of its contributions to the budget of the Court would result in the offending State being unable to access the Court's services. However, an individual of the offending State would not be denied access to the Court in the Original or Appellate jurisdiction of the Court. Right of Audience by Attorneys-at-Law or Legal Practitioners Attorneys-at-Law or Legal Practitioners duly admitted to practice law in the Courts of a Contracting Party are not required to satisfy any other condition in order to practise before the CCJ Privileges and Immunities to be recognised and granted to the judges and officers of the Court to be laid out in a Protocol. Amendment Signature Ratification Entry into Force The Agreement shall enter into force upon the deposit of instruments of ratification or accession by at least 3 Member States. Accession Withdrawal Implementation Reservation

Other Instruments Of The Court The Draft Enabling Bill To Implement The Agreement Establishing the CCJ Since each Member State that is a signatory to the Agreement is a sovereign State, it means that each State would be required to pass this Bill in its Parliament and comply with the necessary Constitutional requirements to alter or amend that State's Constitution to allow for the replacement of the Privy Council by the CCJ. Rules of Court CCJ(Appellate Jurisdiction) Rules of Court CCJ(Original Jurisdiction) Agreement Establishing the Seat of the Court and the offices of the Regional Judicial and Legal Services Commission between the Government of Trinidad and Tobago and the Caribbean Community. Protocol on the Privileges and Immunities of the CCJ and the Regional and Legal Services Commission. Regulations of the Regional and Legal Services Commission Conclusion The establishment of the CCJ is still in its embryonic stage. At the twenty-first Head of Government Conference it was decided to intensify the PEP with a view to have the Agreement signed by all Member States before the end of the year. The PEP is vital to the establishment of the CCJ because the critics of the Court have done a lot of damage in respect of bad press. There is a need to reduce, or if possible, to dispel this negativity and put the CCJ in the proper light so that Caribbean people would see the benefit of the establishment of the Court as a means of strengthening regional integration. Now is the time for us to exercise our judicial sovereignty and chart our own course. Issues For Discussion Model CARICOM Youth Summit is invited to: Agree on the establishment of the CCJ as the replacement for the Privy Council as well as an International tribunal to hear and determine disputes in relation to the interpretation and application of the Revised Treaty. Offer an opinion on the independence of the judges of the CCJ

Offer an opinion on whether Member States should have a referendum on replacing the Privy Council as the final court of appeal. Offer an opinion on any other issues you may find appropriate. History 4 Introduction This guide is designed to facilitate research on the Caribbean Court of Justice, a new court which was inaugurated on April 16, 2005 in Port of Spain, Trinidad and Tobago. The court is expected to serve as a court of last resort for Caribbean states, eventually replacing the Judicial Committee of the Privy Council in the United Kingdom The guide traces the court's history and outlines its mandate and structure. It also provides information on the court's funding, its justices and recent judgments. The guide is also a useful resource for research on the Caribbean Community (CARICOM) and the CARICOM Single Market and Economy (CSME). History of the Caribbean Court of Justice Regional appellate courts, though short-lived, have operated in the Caribbean over the course of its history. Two important forerunners of the Caribbean Court of Justice are the itinerant West Indian Court of Appeal, established during the colonial period, and the Federal Supreme Court which operated between 1958 and 1962 when the region experimented with federal governance. In its 1992 report, the West Indian Commission recommended the establishment of a Caribbean Supreme Court to replace the Judicial Committee of the Privy Council, a Committee considered detached from the Caribbean reality, and a constant reminder of the region's colonial past. The Commission's recommendation was just one of a number of calls over time from various quarters for a permanent regional court in order to strengthen Caribbean jurisprudence, and promote social and economic stability. Caribbean economic and social integration led to the formation of CARICOM, which was established by the Treaty of Chaguaramas which came into force on August 1, 1973. The Revised Treaty of Chaguaramas Establishing the Caribbean Community, Including the CARICOM Single Market and Economy entered into force on January 1, 2006. Controversy has surrounded the court even before its inauguration, and the literature on the court is replete with references to it as a "hanging court", due largely to the landmark 1993 Privy Council ruling on Pratt and Morgan, (Earl Pratt and Ivan Morgan v.

The Attorney General for Jamaica, 1993) two Jamaican death row inmates whose sentences were commuted to life. The protracted stay of inmates on death row was considered cruel and inhumane treatment by the Privy Council, which ruled that the sentences of inmates on death row for more than 5 years should be commuted to life. Caribbean human rights organizations suggested that the Court's establishment was a move by regional governments to resume hanging. Critics of such organizations, however, have pointed to historical calls for the court's establishment and also point to the court's original jurisdiction with respect to the Revised Treaty of Chaguaramas. The Court's Mandate and Structure The Agreement Establishing the Caribbean Court of Justice entered into force on July 23, 2002. To date, 12 CARICOM member states are signatories to the Agreement. They are: Antigua & Barbuda; Barbados, Belize; Dominica; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; St. Vincent and the Grenadines; Suriname and Trinidad & Tobago. However, only Barbados and Guyana have made the court their final appellate court. Other member states are pursuing constitutional reform in order to replace the Judicial Committee of the Privy Council. The Court is considered unique in terms of its mandate and structure, particularly with respect to its dual jurisdictions. As a replacement of the Judicial Committee of the Privy Council, the Court will exercise an appellate jurisdiction (Part 111). In addition, the Court is vested with an original jurisdiction (Part 11, Article X1) with regard to the interpretation and application of the Treaty Establishing the Caribbean Community. Regarding its appellate jurisdiction, the Court will review and rule on appeals arising from civil and criminal cases originating from common law courts in the jurisdiction of states party to the Agreement Establishing the Caribbean Court of Justice. Justices There are 7 justices of the Caribbean Court of Justice, six of whom are male. Below are the names of the justices and their citizenship: Right Honorable Mr. Justice Michael de la Bastide - President (Trinidad & Tobago) The Honorable Mr. Justice Rolston Nelson (Trinidad & Tobago) The Honorable Mr. Justice Duke E.E. Pollard (Guyana) The Honorable Mr. Justice Adrian Saunders (St. Vincent & The Grenadines) The Honorable Madame Justice Desiree Bernard (Guyana) The Honorable Mr. Justice David Hayton (United Kingdom) The Honorable Mr. Justice Jacob Wit (Netherlands Antilles)

The Regional Judicial and Legal Services Commission (RJLSC) appoints judges of the Caribbean Court of Justice. The eleven-member Commission is headed by a Court President who serves as Chairman of the Commission. The other members of the commission are appointed by regional legal, educational and public sector institutions. The President of the Court is appointed by participating Caribbean States on the Commission's recommendation and may only be removed on the Commission's recommendation. Judges may only be removed from office by a tribunal's recommendation. Article 1X states that the President of the Court holds office "for a non-renewable term of 7 years or until he attains the age of seventy-two years". A judge of the court "shall hold office until he attains the age of seventy-two years" (Article 1X 3). Court Rules The following Rules of the Caribbean Court of Justice are available on the court's website: http://www.caribbeancourtofjustice.org/rules.html The Caribbean Court of Justice (Original Jurisdiction) Rules 2005 The Caribbean Court of Justice (Original Jurisdiction) (Amendment) Rules 2006 The Caribbean Court of Justice (Appellate Jurisdiction) Rules 2005 The Caribbean Court of Justice (Appellate Jurisdiction) (Amendment) Ru les 2006

Funding The Caribbean Development Bank administers a trust fund of US$100 million to meet the court's expenses during its first five years of operation The Government of Trinidad and Tobago provided the building which currently houses the court. The Court's independent source of funding is expected to ensure its autonomy and decrease the risk of political pressure with respect to its judgments. Introduction 2 The ongoing debate about the establishment of the Caribbean Court of Justice (CCJ), and whether or not it would benefit the people of the Caribbean or should be the final appellant court continues. The CCJ was established in 2001 and is based in Trinidad and Tobago. The objective of the CCJ was to provide for the Caribbean community an accessible, fair, efficient, innovative and impartial justice system built on jurisprudence

reflective of our history, values and traditions while maintaining an inspirational, independent institution worthy of emulation by the courts of the region and the trust and confidence of its people. However, like any other objective, there are both advantages and disadvantages that accompanies it. After careful analysis on this matter, there are a number of advantages that can be explored. These include: the legal and social landscape of the Caribbean, our independence, the comparatively cheaper expense of the CCJ as oppose to the Privy Council and leaving a legacy for our future generation. Having an established CCJ is seen as a better alternative to the Privy Council because the judicial personnel of the CCJ would be more aware of the legal and social landscape of the Caribbean and would be in a better position to rule more effectively on legal matters. It is believed that judges who are present in the final courts that play a role in the decision making of the case, should be knowledgeable of that countrys rules and regulations, and should also be knowledgeable of what is happening in the country and rule with such things in mind. Do you think that the Lords of the Privy Council would actually know the present situation of your country better? No! They would just base their decisions excluding the constitution precepts of the nation in question.