CCJ at 25: The case for completing the Caribbean’s judicial independence

Little, if any, public fanfare accompanied what ought to have been a momentous occasion in Caribbean jurisprudential history, as the Caribbean Court of Justice (CCJ) recently marked the 25th anniversary of its establishment through the Revised Treaty of Chaguaramas. A bastion of regional sovereignty, the Court was formally inaugurated and operationalised four years later and, despite its relatively short existence, can lay claim to a notable impact on Caribbean development no less significant than that of older regional institutions.

The CCJ owes its existence to a century of agitation for an indigenous final court of appeal, which began with a Jamaica Gleaner editorial in March 1901 noting that the Judicial Committee of the Privy Council (JCPC) was “out of joint” with the times, having been established a year before the initial granting of Emancipation in 1834. Despite broad progress, only five territories — Barbados, Belize, Dominica, Guyana and St. Lucia — have acceded to the Court’s appellate jurisdiction, with other CARICOM members choosing to remain with the CCJ’s original jurisdiction, interpreting and applying the Revised Treaty. Referenda on the issue of replacing the Privy Council have failed in Antigua and Barbuda, Grenada and St. Vincent and the Grenadines, while public sentiment in Jamaica remains divided on whether this represents the best mechanism to decide the matter, though it is not a constitutional requirement.

Adoption of the CCJ has been enmeshed in regional debate for the past quarter-century, and most views on both sides of the discourse have been well ventilated. Cost comparisons with the Privy Council have featured most prominently, rendering access to the latter difficult, if not altogether impossible, for many. It is estimated that complainants appealing to the Privy Council pay more than five times as much as those appealing to the CCJ. The real cost to litigants stems from the requirement to purchase airline tickets and process visa applications. Furthermore, complainants must retain the services of a UK-based barrister to provide counsel in the appeals process, and litigants must also cover accommodation costs for the duration of their legal dispute. Overall, the average costs associated with these requirements have been estimated at approximately US$65,000. Coupled with filing fees based on the nature of the case, litigants must also bear the cost of requesting and certifying documents, as well as other additional fees that may arise during the filing process.

Compelling reasons credibly opposing the CCJ on grounds of jurisprudential quality and competence have yet to be offered. Some are reflexively opposed to the idea of a court populated by Caribbean citizens, based on perceptions of the proximity of its judges to the political directorate and the potential for influence peddling. Others remain wedded to notions of British juridical superiority. Within 70 years of its formation, Caribbean forebears believed the Privy Council had become an anachronism at the turn of the 20th century, just two months after the official end of the Victorian era. It remains somewhat of a mystery why any Caribbean contemporary would view the Privy Council as modern-day relevant with the passage of an additional 125 years.

The CCJ may have its own deficiencies, but so far, no evidence has been adduced to suggest that those limitations should prevent member states that have yet to fulfil their treaty obligations from doing so within a reasonable timeframe. As a relatively fledgling entity, growing pains are expected as the Court continues to build institutional memory and social capital. Even for those who do not subscribe to the idea of dispensing with colonial remnants and asserting Caribbean identity, reposing faith in the continued ability of an external entity to indefinitely serve the region becomes fanciful, given that the region exercises no control over its operations. The Privy Council is a body of advisers to the British monarch, of which its judicial committee is one arm. Each appeal to this committee represents, in effect, a petition to a foreign king, deliberated by those tasked with advising him — a process incongruous with 21st-century conceptions of political, social and economic independence.

The unpredictability of this arrangement is brought into even sharper focus when one considers how easily and quickly the Privy Council could decide to stop hearing appeals from the Caribbean. On several occasions, Privy Council judges — who have also sat in Britain’s Supreme Court since 2009 — have lamented the additional workload from Commonwealth territories, including the Caribbean, and have recommended acceleration toward full accession to a regional final court of appeal. For all the debate on whether remaining Caribbean countries should leave, they ultimately may not even have a say in when or how this occurs.

Despite the Privy Council’s insistence that it remains open to serving the Caribbean — and that technological advances have reduced travel and accommodation costs for claimants — mandatory legal fees for retaining UK solicitors remain prohibitive. To incorporate greater cultural considerations into its decision-making and to familiarise itself with local conditions across the jurisdictions it serves, the Privy Council has resumed inviting Caribbean judges to sit on the Council to adjudicate cases emanating from the region. However, this exposes an inherent Anglophilic bias among proponents of the JCPC: if Caribbean judges, some of whom have sat on the CCJ, are considered good enough to sit on the Privy Council, on what reasonable grounds should similarly trained jurists be rejected as the final arbiters in regional matters?

The gradual decolonisation of Caribbean islands represented a catalyst for true decoupling from colonial rule and a step toward regional interdependence. However, despite this reality, some countries continue to hold steadfastly to the status quo. Countries that remain with the Privy Council are unlikely to be easily persuaded of the benefits of switching to the CCJ, however real these may be. Full embrace of the regional court will depend heavily on the extent to which ideological tensions can be resolved between those most resistant to change and those prepared to complete the region’s judicial evolution.

Keenan Falconer is an economist with experience across Jamaica’s public and private sectors and the multilateral financing space. Send feedback to keenanjfalconer20@gmail.com.