by Sir Lawrence A Joseph
Perhaps the most compelling argument for all Caribbean countries to accede to the Appellate Jurisdiction of the Caribbean Court of Justice (CCJ) is to establish and develop a Caribbean jurisprudence.
The term jurisprudence has evolved over the years with varying meanings. In the present context, jurisprudence refers to the science of law which ascertains the principles upon which legal rules are to be determined and settles the manner in which new or doubtful rules should be treated. Whilst a number of laws are settled laws which are either established by constitutional provisions, legislation or by case decisions, there will always be new situations which will tax judicial discretion and reasoning to a maximum. In such situations, all the cultural and sociological experiences of judges will in fact have tremendous influences on their decisions. It seems therefore that Caribbean judges would be ideally suited to settle any new and doubtful Caribbean issue.
At the present time a number of Caribbean countries, including Grenada, although participating in the Original Jurisdiction of the CCJ, have yet to accede to its Appellate Jurisdiction and so enable the replacement of the Privy Council as their final court of appeal. As long as this situation remains, the growth of Caribbean jurisprudence will remain stultified to the detriment of Caribbean people. It is posited that the original concept of the Privy Council has become outmoded. Since the Norman conquest of England by William the Conqueror in 1066 AD the King was recognized as the fountain of justice throughout the Dominions and exercised jurisdiction by way of his Council or “Curia Regis” which sat in an advisory capacity to the Crown.
This principle was put into legislation in the UK by the Judicial Committee Act of 1833, which established what we now know as the Privy Council. Following their attainment of independence, most Commonwealth countries now have delinked from the Privy Council and now have their own final courts of appeal. It seems therefore that the time is ripe for all Caribbean countries to do the same in order to complete our independence from the UK. Contrary to popular belief, the Privy Council is not being used by the UK as a final court of appeal in the normal civil and criminal cases, as the UK has its own independent final Court of Appeal pertaining to these matters. The UK is merely doing certain Commonwealth countries a favour by making the Privy Council available to those countries and may implement a halt to that favour at any time as continuously being intimated.
It is to be noted that since the Appellate Jurisdiction of the CCJ took effect in 2005, that court has been in the continuous process of developing a Caribbean jurisprudence. So far the participating countries in its Appellate Jurisdiction are Barbados, Guyana, Belize and Dominica. During the Grenada Bar Association’s 16th Sir Archibald Nedd Memorial Lecture which was held on 26 April last, former Minister of Government in Belize and attorney at law Eamon Courtenay, SC outlined the experiences of Belize with regards to its appeals to the CCJ. One significant case that was mentioned was Marin v Coye v A.G of Belize which was heard by the CCJ in 2011. In that case the CCJ ruled that the Attorney-General had the capacity to sue former ministers of government for the tort of misfeasance in public office which was a cause of action that was unheard of hitherto. The CCJ therefore crafted their reasons for their decision in line with the social mores and social thinking of the Caribbean.
In another case BCB Holdings Ltd. et al v A.G. of Belize which was heard by the CCJ in 2013, the CCJ ruled that despite a substantial award which was given against the Belizean government by an Arbitration Tribunal, it would be contrary to public policy to allow the enforcement of such an award because the agreement was confidential with no legislative approval. The CCJ is therefore breaking new grounds and laying down practical rules for the enforcement of ‘new law’ that will inevitable come up from time to time within the Caribbean region. Indeed those Caribbean judges are in the best position to do so.
There is no doubt that our judges on the CCJ are independent, highly competent and professional. Moreover, adequate mechanisms are in place to ensure that they are completely insulated from political interference. Their selection to their positions on the CCJ are consequential upon their appointments by a Regional Judicial and legal Services Commission which itself is completely insulated from political interference. Additionally the CCJ has its own Trust Fund which is expected to last until perpetuity so that there will be no continuous dependence on participating states for hand-outs. The Caribbean therefore is well in place to fully develop its own jurisprudence rather than depend on British judges who are far removed from our culture and sociological environment to solve our Caribbean problems.