The Caribbean Court of Justice (‘CCJ’) has been established with original as well as appellate jurisdiction (Art. III (1) Agreement Establishing the CCJ; (‘CCJ Agreement’)) and with final decision-making capacity (Art. III (2)). In establishing the CCJ, the contracting parties have been convinced that it ‘will have a determinative role in the further development of Caribbean Jurisprudence through the judicial process’ and have been made aware that this constitutes ‘a further step in the deepening of the regional integration process’ (Preamble CCJ Agreement).
2. Establishment and Governing Agreement
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The CCJ was proposed by Jamaica as a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council (‘JCPC’) at the Sixth Meeting of the Heads of Government of CARICOM in 1970 (Rawlins 10; → Caribbean Community (CARICOM)). It was subsequently established on 14 February 2001, and inaugurated on 16 April 2005 to also include an original and exclusive jurisdiction to interpret and apply the Revised Treaty of Chaguaramas Establishing the Caribbean Community (2001) (Art. III (1) and Part II CCJ Agreement).
3
The operations of the CCJ are governed by the CCJ Agreement, and complemented by the 2003 Protocol to the Agreement Establishing the CCJ relating to the Juridical Personality and Legal Capacity of the Court and the 1999 Protocol on the Privileges and Immunities of the Caribbean Court of Justice and the Regional Judicial and Legal Services Commission (‘Status Protocol’; this and other CCJ documents can be found on the Court's website <Show URL>). They also rely on the 2005 Agreement Establishing the Seat of the CCJ and the Offices of the Regional Judicial and Legal Services Commission between the Government of Trinidad and Tobago and the CCJ (‘Seat Agreement’) and the 2004 Revised Agreement Establishing the CCJ Trust Fund (‘Trust Fund Agreement’).
3. Seat
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The seat of the CCJ as well as the offices of the Regional Judicial and Legal Services Commission (‘RJLSC’) has been determined to be in Trinidad and Tobago (Preamble Seat Agreement). Nevertheless, ‘as circumstances warrant, the Court may sit in the territory of any other Contracting Party’ (Art. III (3) CCJ Agreement).
5
Both the seat of the CCJ and offices of the RJLSC shall be inviolable and under the authority of the President (Art. III (3) Seat Agreement). Officials of government have been prohibited from entering except with the consent of, and under conditions agreed by, either the Court Executive Administrator or the Registrar (Art. III (4) Seat Agreement). The Court Executive Administrator may also expel or exclude persons for violations of applicable regulations, or for any other reasonable cause (Art. III (7) Seat Agreement).
6
As a safeguard, the President shall not permit the seat of the CCJ or the offices of the RJLSC to become a refuge for anyone seeking to avoid the legal process of Trinidad and Tobago (Art. III (6) Seat Agreement).
4. Relevance
(a) Judicial Institution Building
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It is anticipated that the CCJ will be able to advance the further development of a Caribbean jurisprudence and also support attempts to deepen the regional integration process (see para. 2 above).
(b) De-linking from the Judicial Committee of the Privy Council
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The Judicial Committee of the Privy Council (‘JCPC’) has been since colonial times, and still is, a final Court of Appeal for some Member States of the Commonwealth Caribbean. To remove themselves from this attachment and submit instead to the jurisdiction of the CCJ, these States will have to undertake relevant constitutional or other changes in their domestic regimes (Pollard (2004) Chapter 5). Barbados and Guyana have submitted to the appellate jurisdiction of the CCJ in 2003 and 2004 respectively. By this change in domestic regime, Barbados and Guyana can now be considered to have become de-linked from the JCPC.
5. Jurisdiction
(a) Original
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The original jurisdiction of the CCJ is intended to become an integral operational component of the CARICOM Single Market and Economy (‘CSME’) (Pollard (2004) Chapter 4). The CCJ shall have exclusive authority to hear and deliver judgment on disputes between contracting parties; disputes between a contracting party and CARICOM; referrals from national courts or tribunals of contracting parties; and applications by nationals concerning the interpretation and application of the Revised Treaty of Chagauramas (Art. XII CCJ Agreement). It also has exclusive jurisdiction to deliver → advisory opinions concerning the interpretation and application of the Revised Treaty of Chagauramas (Art. XIII CCJ Agreement). With special leave, and in special circumstances, nationals of a contracting party may appear before the CCJ in its original jurisdiction (Art. XXIV CCJ Agreement).
10
The CCJ shall apply relevant rules of international law (Art. XVII (1) CCJ Agreement) or decide a dispute → ex aequo et bono if the parties agree (Art. XVII (3) CCJ Agreement), and shall be duly constituted if it consists of not less than three judges being an uneven number of judges (Art. XI (1 CCJ Agreement)). Deliberations in the original jurisdiction shall be under the control of a chairman who shall be the most senior of the judges appointed by the President (Art. XI (3) CCJ Agreement). This jurisdiction may, however, be exercised by a sole judge appointed by the Chairman (Art. XI (4) CCJ Agreement). His decision may, on the application of an aggrieved party, be reviewed by a panel comprising not more than five judges (Art. XI (5) CCJ Agreement).
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Judgments of the CCJ shall be legally binding precedents for parties in proceedings before it, unless such judgments have been revised in accordance with established procedure (Art. XXII CCJ Agreement).
(b) Appellate
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In the exercise of its appellate jurisdiction, the CCJ is a superior court of record with such jurisdiction and powers as are conferred on it under the CCJ Agreement or by the Constitution, or any other law of a contracting party (Art. XXV CCJ Agreement). The CCJ Agreement has determined circumstances in which appeals shall be as of right (Art. XXV (2) CCJ Agreement) and others in which special leave is required (Art. XXV (3) CCJ Agreement).
6. Membership and Participation
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The original signatories to the CCJ Agreement on 14 February 2001 were Antigua and Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St Kitts and Nevis, Saint Lucia, Suriname, and Trinidad and Tobago. The CCJ Agreement was subsequently signed by Dominica as well as St Vincent and the Grenadines on 15 February 2003, bringing the total number of signatories to 12.
14
The other Member States of CARICOM, namely the Bahamas, Haiti, and Montserrat, have not yet become signatories to the CCJ Agreement. However, their capacity for membership, as well as that of any other Caribbean country that is invited by the Conference of Heads of Government of Member States of the CARICOM to become a party, has been secured (Art. II CCJ Agreement).
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To date, only two of the 12 signatories—Barbados and Guyana—have submitted to the appellate jurisdiction of the CCJ.
7. Composition of the Court
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The CCJ shall comprise a president and not more than nine other judges, of whom at least three shall possess expertise in international law, including international trade law (Art. IV (1) CCJ Agreement). The number of judges, excluding the President, may be increased by the Heads of Government, upon recommendation of the RJLSC (Art. IV (2) CCJ Agreement). Notwithstanding the provisions of Art. IV (1) CCJ Agreement, the President may appoint one or more judges to determine interlocutory matters (Art. IV (5) CCJ Agreement).
8. Rules of Court
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The rules of court to be applied in the original jurisdiction have been established under the CCJ (Original Jurisdiction) Rules of 2006 and the Amendment of the same year. The relevant rules of court to be applied in the appellate jurisdiction have been established under the CCJ (Appellate Jurisdiction) Rules of 2005 and the 2006 Amendment.
9. Administration
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The administration of the CCJ has been entrusted to the Department of Court Administration. It is headed by the Court Executive Administrator who reports to the President and is responsible for overall development and management of the CCJ.
10. Right of Audience
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Attorneys-at-law, legal practitioners, and advocates duly admitted to practice in a Contracting State shall be entitled to appear before the CCJ and shall enjoy the privileges and immunities necessary for the exercise of their duties (Art. XXIX CCJ Agreement). The privileges and immunities that are accorded to counsel have been established under the relevant protocol (Art. IX Status Protocol).
B. Regional Judicial and Legal Services Commission
1. General
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The Regional Judicial and Legal Services Commission (‘RJLSC’) has been established under Art. V (1) CCJ Agreement with full juridical personality, including the capacity to enter contracts (Art. VII (1) CCJ Agreement). It consists of the President of the CCJ who shall be the Chairman and such other persons as have been determined under Art. V (1) (a)–(g) CCJ Agreement. The Registrar of the CCJ shall perform the functions of Secretary and is as well Chief Administrative Officer of the RJLSC (Art. V (11) CCJ Agreement). Each member of the Commission, other than the President, shall be able to serve a three years term of office, renewable for another three years term (Art. V (4) CCJ Agreement).
2. Functions
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The RJLSC appoints the judges of the CCJ except its President (Art. V (3) (1) (a) CCJ Agreement); appoints the Registrar, Deputy Registrars, and other employees of the CCJ as the Commission may consider necessary, and determines their salaries and allowances (Art. V (3) (1) (b) CCJ Agreement); determines the terms and conditions of service of officials and employees (Art. V (3) (1) (c) CCJ Agreement); and terminates appointments in accordance with provisions under the CCJ Agreement (Art. V (3) (1) (d) CCJ Agreement). It shall also exercise disciplinary control over judges of the CCJ, other than the President, as well as over its officials and employees (Art. V (3) (2) CCJ Agreement).
22
The RJLSC may make regulations governing appointment, discipline, termination of employment, and other terms and conditions of service (Art. XXXI (a) CCJ Agreement); prescribing the procedure governing the conduct of disciplinary proceedings (Art. XXXI (b) CCJ Agreement); and generally giving effect to the CCJ Agreement (Art XXXI (c) CCJ Agreement). The RJLSC is also required to submit an annual report of its work and operations to the Heads of Government (Art. V (10) CCJ Agreement).
3. Independence
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The RJLSC has power to regulate its own procedure (Art. V (14) CCJ Agreement) and in the exercise of their functions the members shall neither seek nor receive instructions from any external body or person (Art. V (12) CCJ Agreement). The RJLSC and its members have also been accorded established privileges and immunities (Status Protocol) in the territories of contracting parties (Art. VII (2) CCJ Agreement), and their proceedings shall not be inquired into in any court (Art. VII (3) CCJ Agreement).
C. Financial Support and Autonomy
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The States Parties to the CCJ Agreement being ‘conscious that the financial viability of the Court is essential for its efficiency, effectiveness and independence in the performance of its functions’ have sought to ‘promote and safeguard the independence, integrity and credibility of the Court’ (Preamble Trust Fund Agreement) by establishing a fund from which to meet the capital and recurrent expenditures the CCJ as well as those of the RJLSC in perpetuity (Art. III Trust Fund Agreement).
25
The Fund has full juridical personality, including the capacity to contract as well as to acquire and dispose of property, and institute legal proceedings (Art. XI (1) Trust Fund Agreement). The principal office of the Fund is located in Trinidad and Tobago (Art. XI (2) Trust Fund Agreement) and it has been accorded established privileges and immunities in the territories of each Member State. These are intended to ensure that the Board of Trustees and officers of the Fund are not impeded in fulfilling the functions entrusted to them (Art. XII Trust Fund Agreement).
26
There is an established Board of Trustees (Art. V Trust Fund Agreement) that shall comprise specific persons (Art. VI (1) Trust Fund Agreement). They hold office and perform specific functions in accordance with established procedure (Arts VI–VIII Trust Fund Agreement). The Fund is managed by an executive officer who is required to report to the Board of Trustees, represent the Fund in relation to third parties, and perform any other functions as may be assigned by the Board of Trustees from time to time (Art. X Trust Fund Agreement).
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The resources of the Fund shall consist of the contributions of members; income derived from operations of the Fund or otherwise accruing to the Fund; and contributions of third parties being contributions which are not likely to prejudice the independence or integrity of the CCJ (Art. IV (1) Trust Fund Agreement). The contribution of each member has been based on a specific percentage of an initial sum fixed at US$100,000,000.00 (Annex Trust Fund Agreement). However, the adequacy of the resources committed shall be subject to at least a biennium Board of Trustee review (Art. IV (5) Trust Fund Agreement) and where necessary the members shall be required to make additional contributions (Art. IV (7) Trust Fund Agreement).
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While there are no restrictions as to the use of contributions that have been made by members for the purposes of the Fund (Art. IV (8) Trust Fund Agreement), ‘financing from the Fund shall be governed by considerations of economy, efficiency and cost effectiveness and the need to safeguard the independence and sustainability of the Court and the Commission’ (Art. IV (9) Trust Fund Agreement).
D. Judges
1. Appointment
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An eligible person for appointment to the office of Judge of the CCJ shall be of high moral character with intellectual and analytical ability, sound judgment, integrity, and understanding of people and society (Art. IV (11) CCJ Agreement). He would also have been judge of a court of unlimited jurisdiction in civil and criminal matters in the territory of a Contracting State, or in another recognized State, and who in the opinion of the RJLSC has distinguished himself in office (Art. IV (10) (a) CCJ Agreement), or engaged in the teaching of law for not less than 15 years in a Member State of CARICOM, or in another recognized State, and has distinguished himself in the legal profession (Art. IV (10) (b) CCJ Agreement).
30
The RJLSC appoints persons to the office of Judge, other than the President (Art. V (3) (1) CCJ Agreement), by a majority vote of all its members (Art. IV (7) CCJ Agreement). The President shall be appointed or removed by a qualified majority vote of 3/4 of the contracting parties on the recommendation of the RJLSC (Art. IV (6) CCJ Agreement).
31
Prior to appointing a judge, the RJLSC may consult with associations representative of the legal profession as well as other bodies and individuals that it considers appropriate in selecting a judge of the CCJ (Art. IV (12) CCJ Agreement).
2. Judicial Ethics
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International → best practices requiring the judiciary to observe appropriate standards of fairness, integrity, independence, and impartiality, as well as maintain the → rule of law and adherence to principles of → good governance, have been established under a Judicial Code of Conduct for the CCJ.
3. Salaries and Emoluments
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The RJLSC shall, with the approval of the Conference of Heads of Government, determine the terms and conditions as well as other benefits of the President and other judges of the CCJ (Art. XXVIII (2) CCJ Agreement). Once determined, the salaries and emoluments payable to the President and other judges as well as other applicable terms and conditions shall not be altered to their disadvantage during any term of office (Art. XXVIII (3) CCJ Agreement).
4. Tenure and Termination
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The office of a judge shall not be abolished while there is a substantive holder thereof (Art. IX (1) CCJ Agreement). The President shall, however, hold office for a non-renewable term of seven years or until he attains the age of 72 years, whichever is earlier. He is then allowed to hold over for a further period not exceeding three months in order to deliver judgments or complete partially heard matters (Art. IX (2) CCJ Agreement). Every other Judge shall hold office until he attains the age of 72 years. They shall also be permitted to continue for a further period not exceeding three months in order to deliver judgments or complete partially heard matters (Art. IX (3) CCJ Agreement).
35
The removal of a judge from office has to be justified by an inability to perform, whether arising from illness or any other cause, or for misbehaviour, and must be in accordance with established procedure (Art. IX (4) CCJ Agreement).
36
The President shall be removed by the Heads of Government on the recommendation of the RJLSC (Art. IX (5) (1) CCJ Agreement); the other judges shall be removed by the RJLSC (Art. IX (5) (2) CCJ Agreement). The question of removal must first be considered by a tribunal comprising a chairman and not less than two other persons, selected by the Heads of Government (removal of President) or the RJLSC (removal of other Judge) from among an established category of persons (Art. IX (6) (a) CCJ Agreement). This tribunal shall enquire into the matters referred to it and advise whether the person being investigated ought to be removed from office (Art. IX (6) (b) CCJ Agreement).
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The President may also resign from office at any time by writing under his hand addressed to the Chairman of the Conference of Heads of Government (Art. IX (9) (1) CCJ Agreement), while any other Judge may resign by writing under his hand addressed to the Chairman of the RJLSC (Art. IX (9) (2) CCJ Agreement).
E. Judicial Policy Construction
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The CCJ has not been established as an organ of CARICOM. This could be considered a limiting factor to its inherent capacity to impact critical policy development and programme implementation in the CSME. Its non-status among Community organs also means that even if CARICOM were to be considered as having supranational attributes these would not extend to the CCJ (Pollard (2004) 183). The CCJ has, however, been conferred with authority to pronounce authoritatively and definitively on the rights and obligations of Member States and their nationals under the CSME (see paras 16–23 above). With this in mind, and also that CARICOM is a collective of sovereign States, the CCJ will have to adopt a policy of judicial construction that promotes the objectives of the CSME while still being sensitive to the right of Member States to exercise domestic control.
F. Case Law
39
Seven judges, including a president, have been appointed to the CCJ. Their support includes a Master as well as a Registrar who also serves as Chief Marshall.
40
The first sitting of the CCJ was on 8 August 2005 when the Court comprising five judges heard an application for special leave to appeal a decision from the Court of Appeal of Barbados (Barbados Redifussion Service Ltd v Asha Mirchandani McDonald Farms Ltd (2005)). Judgment was delivered by the President on 26 October 2005. Since then, judgments delivered by the CCJ have included Attorney General and Superintendent of Prisons v Jeffrey Joseph and Lennox Ricardo Boyce (2005). This matter was heard by the full court and their judgment of 8 November 2006 has been favourably commented upon across the Caribbean region for its depth as well as the intellectual fortitude and independence of the court.
41
The CCJ has delivered three judgments in its original jurisdiction: Trinidad Cement Ltd v Guyana (2008), Trinidad Cement Ltd v Caribbean Community (2009), and Johnson v Caribbean Centre for Development Administration (2009).
G. Closing Comments
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The CCJ has been established as a ‘unique 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 it operations’ (Pollard (2004) 37). Notwithstanding measures that have been implemented for its independence, the significant sums of money being spent for its upkeep and the quality of its judgments to date, the CCJ has been underutilized. This has prompted the Prime Minister of Dominica to make a recent call upon regional governments to now determine the future of the CCJ. He has, at the same time, indicated that steps are now being taken to secure the full participation of Dominica in the appellate jurisdiction of the court. There is however no clear indication that the necessary steps to be undertaken by other Member States that do not now subscribe to the appellate jurisdiction of the CCJ are being seriously pursued.
43
Still, although its non-status among CARICOM organs as well as minority submission to its appellate jurisdiction could be construed as a lack of required support, the CCJ is a work-in-progress that could, with unequivocal support from the political directorate, become an even more critical component of judicial institution building. With this necessary support it could also become an important instrument for economic development and social cohesion in CARICOM.
Select Bibliography
H Rawlins The Caribbean Court of Justice: The History and Analysis of the Debate (CARICOM Secretariat Georgetown 2000).
DE Pollard (ed) The CARICOM System: Basic Instruments (Caribbean Law Publishing Kingston 2003).
DE Pollard The Caribbean Court of Justice: Closing the Circle of Independence (Caribbean Law Publishing Kingston 2004).
D Perrot ‘La Cour de justice de la Caribe, une nouvelle Cour de justice communautaire’ (2007) 43 RTDE 445–71.
R-M B Antoine Commonwealth Caribbean Law and Legal Systems (2nd edn Routledge Cavendish London 2008).
Select Documents
Caribbean Court of Justice <Show URL> (2 July 2009).
Attorney General and Superintendent of Prisons v Jeffrey Joseph and Lennox Ricardo Boyce CCJ Appeal No CV 2 of 2005 (2008) 134 ILR 469.
Agreement Establishing the Caribbean Court of Justice (signed 14 February 2001, entered into force 23 July 2003) 2255 UNTS 319.
Agreement Establishing the Seat of the Caribbean Court of Justice and the Offices of the Regional Judicial and Legal Services Commission between the Government of Trinidad and Tobago and the Caribbean Court of Justice and the Regional Judicial and Legal Services Commission (signed and entered into force 23 February 2005) 2324 UNTS 335.
Barbados Redifussion Service Ltd v Asha Mirchandani McDonald Farms Ltd (2005) <Show URL> (30 June 2009).
Caribbean Community Secretariat ‘Caribbean Court of Justice Act 2003’ <Show URL> (30 June 2009).
Johnson v Caribbean Centre for Development Administration (2009) CCJ 3 (OJ).
Protocol to the Agreement Establishing the CCJ relating to the Juridical Personality and Legal Capacity of the Court <Show URL> (2 July 2009).
Protocol on the Privileges and Immunities of the Caribbean Community (signed 14 January 1985, entered into force 15 January 1990) 2324 UNTS 493.
Revised Agreement Establishing the Caribbean Court of Justice Trust Fund (signed 12 January 2004, entered into force 27 January 2004) 2324 UNTS 231.
Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy (signed 5 July 2001, entered into force 4 February 2002) 2259 UNTS 293.
Trinidad Cement Ltd v Caribbean Community (2009) CCJ 2 (OJ).
