CCJ LIMITED JURISDICTION

Nov 20, 2018 Editorial

In a referendum held on November 6, the people of Grenada and Antigua and Barbuda roundly rejected the proposal to replace the British Judicial Committee of the Privy Council with the Caribbean Court of Justice (CCJ) as their final appellate court.
It was a severe blow to the proposal, which has now been rejected on four separate occasions within the last 10 years by the people in three CARICOM countries. In both countries the change required a two-thirds majority in a referendum, an almost impossible target.
In 2009, the voters of St Vincent & the Grenadines rejected the proposal, which also requires a two-thirds majority in a referendum and in Parliament. For all intents and purposes, it appears that the appellate jurisdiction of the CCJ will remain confined to the four existing members— Barbados, Belize, Dominica and Guyana, at least for the foreseeable future.
Surprisingly, the reason for the defeat was because the leadership of the governing parties in both countries played little or no role in educating the electorate about the issue on which they were required to vote. They have neglected the importance of direct political engagement to educate and inform their electorates and to dispel fears manufactured by opposing political parties and other groups with a vested interest.
The Bahamas had long signaled its intention to keep the Privy Council. Haiti and Suriname operate under the Napoleonic Code of law. This leaves Jamaica, St Kitts & Nevis, St Lucia, St Vincent & the Grenadines, and Trinidad & Tobago to decide one way or the other on the CCJ.
The absence of direct involvement by the political leadership of the governing parties created a vacuum that was readily filled by those who opposed a constitutional change that would make the CCJ the final court of appeal for civil and criminal matters.
While the governments did not engage in the kind of necessary political campaigning and groundwork, including house-to-house visits and offering explanations and answering questions, opposition elements had created fears among the people. The objective was to defeat the proposal and embarrass the governments; a reality which the governing parties appeared oblivious.
The failure of the CCJ to achieve the inclusiveness and growth originally envisaged should not be surprising. That has been the fate of many other regional initiatives. It is now facing a reality check given the recent referenda results and their implications for its future.
For whatever reasons, valid or uninformed, it seems that the people simply are not prepared to ditch the Privy Council for the CCJ. They prefer to have this kind of justice dispensed by foreigners far removed from local culture and prejudices. However, the independence of the judges and their insulation from political influence or interference is intact.
The CCJ has seven judges. Its original jurisdiction is limited to the interpretation and application of the CARICOM Treaty. In that dispensation, it has dealt with 22 cases since its creation in 2005. In its appellate jurisdiction it has decided 160 cases in the last 10 years. However, the Judicial Committee of the UK Privy Council with 12 judges has decided 409 cases over the same period with the CARICOM countries accounting for 223 of them.
Ninety of the cases were from Trinidad & Tobago; Jamaica, 49; and The Bahamas 47. A major concern has to do with the development of the CCJ jurisprudence because of the limited inflow of cases. It is said that courts mature and jurisprudence is advanced as more cases are heard and decided.
Sixteen cases per year do not provide the depth, expanse and diversity for the robust advancement of Caribbean jurisprudence.

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