-says CCJ must give decisions under law, not decisions to our liking
Former Commonwealth secretary general, Sir Shridath Ramphal, underscoring the primacy of the Caribbean Court of Justice (CCJ), says that the abolition of appeals to the UK Privy Council must be a consequence of the region’s exercise of the right to self-determination in judicial matters.
In an address at the inauguration of the Caribbean Association of Judicial Officers last Thursday in Port-of-Spain, Sir Shridath
urged that the region must furnish the CCJ with the status of a final Court of Appeal in all matters.
“In the particular matter of the Caribbean Court of Justice we must act positively, not negatively. We must not abolish appeals to the Privy Council merely because we disagree with its rulings in capital punishment cases; that abolition, which must come, must be a consequence of our determination to endow our own Caribbean Court of Justice with the status of our final Court of Appeal in all matters; a consequence of the exercise of our right to self-determination in judicial matters too,” the senior regional integrationist said.
However, he pointed out that, “We have not established the Caribbean Court of Justice to give decisions to our liking; but to give decisions under law.”
And further plugging the primacy of the CCJ, he observed that “with the full jurisdiction with which it must soon be endowed, with its rich inheritance of the common law and of that international law which is the underpinning of globalization, (the CCJ) is for me the greatest assurance that as a Community of Caribbean people we can meet and overcome the challenges of the time.”
Guyanese-born Sir Shridath, who previously served as the Foreign Minister of Guyana from 1972-1975, said it was almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters.
And looking at the region’s rich background, he noted that, “A century old tradition of erudition and excellence in the legal profession of the region leaves no room for hesitancy.” He recalled also that ending the jurisdiction of the Judicial Committee of the Privy Council was actually treated as consequential on Guyana becoming a Republic 39 years ago.
Against that background, Sir Shridath admitted, “I am frankly ashamed when I see the small list of Commonwealth countries that still cling to that jurisdiction – a list dominated by the Caribbean.”
The CCJ was inaugurated on April 16, 2005 in Port of Spain, Trinidad & Tobago after a long gestation period. Only Guyana and Barbados have approved it as their final court of appeal. Belize is to do so shortly.
Abysmal contrariety
The senior regional integrationist further remarked that “now we have created our Caribbean Court of Justice in a manner that has won the respect and admiration of the common law world, it is an act of abysmal contrariety that we have withheld so substantially its appellate jurisdiction in favour of that of the Privy Council.”
Citing how well the region is endowed, he observed that the region has “sent Judges to the International Court of Justice, to the International Criminal Court and to the International Court for the former Yugoslavia, to the Presidency of the United Nations Tribunal on the Law of the Sea…” and from “its Caribbean shores have sprung in lineal descent the current Attorneys General of Britain and of the United States.”
In that light, Sir Shridath urged that, “this paradox of heritage and hesitancy must be repudiated by action – action of the kind Belize has just taken to embrace the appellate jurisdiction of the CCJ and abolish appeals to the Privy Council.”
It is enlightened action taken by way of constitutional amendment, he added, and Belize deserves the applause of the Caribbean Community, not just its legal fraternity.
Those countries still hesitant must find the will and the way to follow Belize and perhaps it will be easier if they act as one, Sir Shridath suggested.
“The truth is,” he acknowledged, “that the alternative to such action is too self-destructive to contemplate. If we remain casual and complacent about such anomalies much longer we will end up making a virtue of them and lose all we have built.”
To ensure against that and to give confidence to the publics in so doing, Sir Shridath called on governments to be “as assiduous in demonstrating respect for all independent constitutional bodies, like the Director of Public Prosecutions, for example, as the Caribbean Court of Justice itself must be in demonstrating its own independence.”
In the end, he maintained, “the independence of Caribbean judiciaries must rest on a broad culture of respect for the authority and independence of all Constitutional office holders so endowed.”
Among those attending the inauguration were the President of the Caribbean Court of Justice, Michael de la Bastide, Judges of the CCJ, Chief Justices and other judicial officers of the wider Caribbean and members of the Caribbean’s legal fraternity.
The inauguration of the Caribbean Association of Judicial Officers here in Port of Spain sends a message of assurance to the region and beyond, Sir Shridath said, and that ’beyond’ is significant, he added, as the theme of the conference acknowledged: ‘Caribbean Judiciaries in an area of Globalisation: Meeting the Challenges of the Time’.
Meeting the legal challenges of this time, Sir Shridath added, “is an ineluctable vocation of the judicial officers of today’s Caribbean – as it is of judiciaries worldwide.”
“There is a temptation in small countries and regions far from centres of great power to believe,” he noted, “that because we cannot influence events there, we can conduct our lives as if those events did not matter.”
But he argued that “it was never ever true of the Caribbean; colonialism was its antithesis; and markets for our production of sugar and later bananas meant that the world beyond always was very relevant to us.”
“The era of globalization simply smothered any temptation to think otherwise,” Sir Shridath asserted, “but the new era did more than confirm our primordial needs; it enlarged and extended them and changed them qualitatively. Our two dimensional world had gone global affecting not only us but also all others on the planet.
And basic to that change was law. That is the essential truth our profession must grasp.”
He added that “lawyers who are heirs to a great tradition of fashioning a new jurisprudence out of the rigidities of the old should be in the forefront of a movement that will fashion a new world legal order for the twenty-first century.”
Great challenges are already at hand in such frontier areas as the international commons…., he added, but, as the Law of the Sea dialogue confirms, “these challenges will only be met by new systems and structures when we make the essential conceptual breakthrough about the nature of the human condition; when we acknowledge that the vision of one world has become the reality of one human community.”
New global ‘equity’
“All this is a part of the new global ‘equity’ of which I speak, a consciousness that each man, not just each fellow citizen, is our neighbour, and an acknowledgement that to all men and by all men are rights and duties owed. These are the ultimate challenges to all lawyers,” Sir Shridath declared.
He said that sometimes the role of international law is of direct application to countries in the region, and noted that the Law of the Sea remains one of the best examples of a new legal order in and for the era of globalization.
“We can all be proud that international lawyers from the Caribbean, (Guyana, Jamaica and Trinidad and Tobago in particular) made significant contributions to the formulation of the United Nations Convention on the Law of the Sea (UNCLOS), which was signed in the Caribbean (in Jamaica) on December 10, 1982 by 119 countries.”
A Caribbean ratification brought the Convention into force in 1994 and it remains a supreme example of international treaty law. Its Dispute Settlement provisions have already served the Caribbean through arbitral proceedings involving Barbados and Trinidad & Tobago and Guyana and Suriname, the latter developing important maritime jurisprudence on the concept of ‘the use of force’ under the Convention and the UN Charter, Sir Shridath explained.
Those awards are now part of general international law and, more specifically, the law of the four Caribbean countries. UNCLOS, signed and ratified by Caribbean countries, is part of the body of law applicable to this region of which Caribbean judiciaries, and the Caribbean Court of Justice specifically, must take account, he added.
Sir Shridath said further that “an enlarged regime of law is the quintessential underpinning of globalization. In a globalised world, activities which were previously limited to the local or national levels are internationalized, requiring law-making beyond the single state. The result is a rules-based system of international relations including, with special relevance to our countries, international economic relations.”
He also observed that the Law of the Sea Convention is now the “basic law of our maritime spaces; but even more widely pertinent is the international treaty establishing the World Trade Organisation to which all Caribbean countries are now parties.”
And deriving from the WTO Agreement, therefore, is a complex matrix of legal rights and duties applicable to Caribbean countries, the very essence of law in the era of globalization.
Sir Shridath cautioned that Caribbean judiciaries have to be aware of this body of new law and its implications (sometimes in terms of rights) for Caribbean countries. “If, in the Caribbean, domestic law, and what I believe we must now begin to recognize as regional law, is to be applied consistently with international law we had better gear up ourselves as lawyers for the new realities. That is a challenge of our time.”
Of course, he added, this process of looking beyond the strict boundaries of domestic law will not be strange to Caribbean judiciaries who have already have to take account of the law of the Community in and under the Revised Treaty of Chaguaramas.
This jurisprudence is developing slowly and Caribbean lawyers, not just judges, have a major responsibility to be at the forefront of its development, Sir Shridath stated.
However, he concluded, “I do not want to imply by anything I have said that the rule of international law in our globalised world is secure beyond denial – any more than the rule of law at domestic levels anywhere is impervious to threat.”