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Name: Rahjean Sortie

Grade: 12A3
Date: January 9, 2015
Subject: Law
Title: Caribbean Court of Justice
Unit: 1
Module: Caribbean Legal System

Aims and objectives

Aim
An investigation into the influence behind the formation of the CCJ and to determine if the
CCJ should represent Jamaica as the final court of appeal instead of the Privy Council.
Objectives
The objectives of this research is to:

Identify and explain the main reasons behind the formation of the CCJ.

Identify the main advantages and disadvantage of the Privy Council to determine if
the CCJ should replace the Privy Council as the final court of appeal for Jamaica.

Identify the main advantages and disadvantage of the CCJ to determine if the CCJ
should replace the Privy Council as the final court of appeal for Jamaica.

Introduction to Research
The Caribbean Court of Justice establish in 2001 to replace the Privy Council as the
final court of appeal for all commonwealth countries. However only Barbados and Guyana
have made the court their final appellate court highlighting that the court is fairly new and has
not been drafted in the commonwealth territories constitution. In this research, the researcher
will seek to justify the formation of the CCJ and why he considers it to be more beneficial to
the commonwealth country's legal system including Jamaica than the Privy Council. The
purpose of this research is to carry out a well organised and analytical study for the
International Assessment (I.A.) for Caribbean Advanced Profiency Examination (CAPE).

The agreement establishing the Caribbean court of justice entered into force on July
23, 2002. With 12 CARICOM signed to the agreement, they establish the CCJ 'With original
and exclusive jurisdiction in all matters arising under the Revised Treaty of Chaguaramas
including authority to issue orders enforcing the implementation of CARICOM decisions;
and with appellate jurisdiction in respect of the interpretation of the constitutions and laws of
the member states.'1 However for the CCJ to be most valuable and as seen as one of the
principal institutions for our regional economic development, it has to be accepted as the final
appellate tribunal of the entire Caribbean community. 'The establishment of our regional
supreme is an act of self-realisation and the fulfilment of our sovereign will. It is an act of
self-definition and an inscription of our nationality and therefore of our Caribbean
nationhood.'2 However at the centre of every commonwealth state judicial system, except
Guyana, Belize and Barbados, there is the judicial committee of the Privy Council. This
means although the CCJ acts as the final regional appellate court, there are countries which
have retained appeal to Her Majesty in other matters.
The decision to establish a regional court came about after an assessment was done
into the disadvantages of the Privy Council. The heads of state therefore came together and
realised that it would boost regional cooperation between regional states. The CCJ therefore
'marks a critical step in our attempt to complete the process of political founding begun at the
moment of political independence; taking that to be the watershed event that marks us a
sovereign people.'3 As the period of colonisation came to an end, so should the services of the
Privy Council. It was used to maintain the colonial link in commonwealth Caribbean states as
to regulate their legal system which means England still had little power over them. Many
nations have established appeals to the Privy Council including India (1947), Singapore
(1994), Malaysia (1984), Australia (1986) and Hong Kong (1997). According to Isaac
Hyatali4, 'the countries that abolished the jurisdiction of the Privy Council did so because it
would be offensive to their sovereignties as independent nations to have a foreign tribunal as
their final court of appeal.' The Caribbean should therefore adopt this approach. Although we
are not independent per se, we depend on each other as that is what CARICOM is trying to
1 Justice Roulston Nelson Contextualising the Caribbean community and the CARICOM- Single Market and Economy: Design and Architecture, November 26, 2009
2 Simeon McintoshProfessor of Jurisprudence, Faculty of Law, UWI, Constituting the Caribbean world.
3 Justice Roulston Nelson Contextualising the Caribbean community and the CARICOM- Single Market and Economy: Design and Architecture, November 26, 2009
4 Former chief justice of Trinidad and Tobago

promote, regional economic cooperation. Therefore the establishment of the CCJ is fitting.
The CCJ, legitimated as a creature of our making carries a political and cultural identity,
authencity and legitimacy that the British Privy Council could never claim no matter how
long it serves as the final appellate court for commonwealth Caribbean. The CCJ is a genuine,
representative institution of the people of the Caribbean community with the authority to
speak in their name.
The jurisdiction of the Privy Council bounds its rulings according to the precedents
established by the House of Lords. Therefore there is evidence of Caribbean dynamics
lacking as with the case of the death penalty. Since 1948, the judges of the Privy Council held
that the execution of appellants after long periods of time would amount cruel and inhumane
punishment. 'The judges announced that states seek to retain capital punishment carry out the
action as swiftly as practicable after sentence which allows a reasonable time for approval
and that in any case after sentence there will be a strong grounds for believing that the delay
will constitute inhumane or degrading punishment or other treatment.' 5 This can be seen in
Pratt and Morgan vs AG of Jamaica where both men were on deathrow for 14 years and had
to be freed because of inhumane punishment and a violation of constitutional rights. The
Caribbean people however has been supportive of enforcing the death penalty. Due to the
lack of an efficient judicial system, meeting the demands is impossible. There have been
many human rights group contesting this decision. They believe that the court is a means of
hastening execution ignoring the fundamental rights of those sentenced to death. However
although I am a firm believer that the CCJ should become the final appellate court for
commonwealth states, the CCJ do have its shortcomings. Surely there must be reasons why 9
of the 12 CARICOM states appeals to Her Majesty. The feared list includes that 'the CCJ will
not dispense impartial justice, that it will be too costly, that the judges will not be competent
enough to make the right decisions.6 'It would be an extravagance to cut ourselves off from
the source of our law and from the contemporary evolution of a legal system whose relevance
and value to our affairs we consider to be unquestionable. The privy council gives us the
opportunity to benefit from and contribute to a common pool of case law and to keep in touch
with a variety of similar legal systems.' 7 Therefore the abolition will cut us off from the
source of English law and depriving ourselves from contributing to the English common law.
However, English common law is the principle pillar of our judicial system, this cannot be
5
6 Commonwealth Caribbean Law and Legal Systems, Rose-Marie Belle LLB (UWI) , 2008, Routledge-Cuvendish, pg 309
7 The wooding report

judged perhaps adhered to with the establishment of the CCJ to incorporate Caribbean
flexibility. Guyana, Barbados and Belize which have abolished appeals to the Privy Council
have no evidence of their legal system being compromised in any way. Some argue that the
abolition enhanced the creativity of the judges with regards to the making of precedent.
Another downfall for CCJ is funding which is prominent. 'In a region still regarded as
developing and where problems of devaluation, recession and stringent financial policy are
constantly apparent, the question of financing a court of this magnitude cannot be trivialised.'8
Although funds have been found to establish the court and a trust fund established, a
problematic future still emerges. The Privy Council on the other hand cost us nothing that is
as a result of the taxpayers of Britain which provide funding for the court as well as its
judges. However, for the individual petitioner, the cost of appealing to the Privy Council is
extremely high and often prohibitive. This can be alluded for the low turnover of Privy
Council appeals. Furthermore the CCJ was created by CARICOM for a reason. The CCJ is
our regional appellate court, the states should take up the responsibility of maintain it. It will
benefit the Caribbean as then the evidence of economic cooperation will be seen as well as
economic growth and stability. The CCJ through CARICOM promotes regional link amongst
its states.
To date, there are only 3 states that have replaced the Privy Council with the CCJ. In
its appellate jurisdiction, it has already dealt with issues arising from human rights including
death penalty (A.G. et al vs Ricardo Boyce 2005) and labour rights (King vs Reyes 2011).
One of the most recent and popular cases of the CCJ was Shanique Myrie vs Barbados 2012.
Ms. Myrie arrived in Barbados seeking entry but was denied. In the process, she was
subjected to insults of being a Jamaican and to an 'unlawful cavity search in demeaning and
unsanitary conditions.'9 After which she was detained and deported back to Jamaica the
following day. She believed that her fundamental human rights and freedom was violated.
The court then declared that the Barbados government breached Myrie's right to enter the
country under article 5 of the revised Treaty of Chaguaramas. She was then awarded J-$3.6m
in punitive damages for the treatment she received on her visit to Barbados.
Jamaica and Trinidad & Tobago, arguably two of the most advanced social, political
and economic states of CARICOM still uses the Privy Council. This is notwithstanding the
reality that both countries played a significant role in the establishment of the court.
8 Commonwealth Caribbean Law and Legal Systems, Rose-Marie Belle LLB (UWI) , 2008, Routledge-Cuvendish, pg 320
9 The Shanique Myrie case CCJ Application NO-OA 002 of 2012

According to P.J. Patterson 'I must say it reflects a lack in confidence in ourselves which I
find disappointing.'10 However A.J. Nicholson said 'the Jamaican government is unable to
reap the full benefits of membership of the CCJ because of a ruling by the privy council
nullifying legislation designed to make it the last court of appeal.' 11 Justice A. Saunders
argued that 'the existence of appeals to the privy council reflects the lack of confidence in our
courts. Our courts seem to be looking across the vast ocean towards Britain for applause and
approbation. This subjugation or subservience of judicial thought and independence cannot
be justified in independent and sovereign states.'12

Conclusion
The Privy Council mat have been a useful institution during the colonial era. The
Caribbean has undergone changes in its jurisdiction which differs from those of England. It is
the best interest of all Caribbean nations to recognise the CCJ as their final appellate court as
it enable nations to strengthen their democratic institutions and develop economically socially
and politically as well achieving a higher level of justice. Therefore by maintaining a link

10 Former prime minister of Jamaica

11 Former spokesman
12 CCJ (apart of it) 'Strengths and weaknesses of a regional appellate court and recommendations for enhancing such court's effectiveness'

with England through the Privy Council will hamper process made towards regional
integration.