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Some arguments for the Continuation of Appeals to the Privy Council/ Against the Establishment of the Caribbean Court

of Justice (CCJ) If it isnt broken dont try to fix it- Proponents of this argument are of the view that the Privy Council is properly and satisfactorily functioning as the final court of appeal for the Commonwealth Caribbean territories and there is therefore no need to consider a move to a new judicial system in this regard. There may not be available in the Commonwealth Caribbean sufficient judges of the level of erudition and skill to enable them to function effectively at the level of the judges of the Privy Council. The decisions of those judges may not be of the quality we have come to expect of a final appellate court No adequate or sustainable funding available for the running and maintenance of the CCJ. On the other hand the British Monarch presently funds the Privy Councils administrative process at no cost to peoples of the commonwealth Caribbean states. The Judges of the Privy Council operate above the fray and have no personal interest or nationalistic sentiments in respect of any matters over which they adjudicate. They are therefore less susceptible to corruption, bias, and political manipulation territories of the Commonwealth Caribbean Cost - It is estimated that the construction of the CCJ could cost upwards of US$100 million. Critics are alarmed at expenses of this level and have condemned any suggestion of a Caribbean Court of Appeal at this cost. They have instead recommended that these monies ought to be/have been spent to facilitate growth and development of essential infrastructure and institutions of greater importance, which are capable of providing an economic return and better health and education for their countries citizens. He who pays the piper calls the tune." - In other words critics are fearful that the more wealthy Caricom members may influence the CCJ by manipulating the entire judicial system and ultimately result in corruption and thereby compromise the impartiality of the Court. Of course, not attendant risks are involved in the Privy Councils process. Wholly in contrast the independence, impartiality and integrity of Her Majestys Privy Council has remained without question for centuries.

Judicial Competence - With regard to the competence of the Judiciary and its ability to carry out the desired functions of the CCJ, some express concern that jurists within the region may not be experienced enough to deal with complex Treaty issues and resolve disputes in the interest of CSME. Retention of the Privy Council as our final court of appeal, which is usually in general agreement with the decisions of the jurists of the region, would save on the costs of establishing and administering the CCJ. International Relations - The CCJ the misfortune as being referred to, in many circles, as a "Hanging Court" or a "Calypso Court". This view emanates from the decision of the Privy Council in Pratt & Morgan v. Attorney General of Jamaica (1993) 3 ALL ER 769. In that case, the Privy Council ruled that a delay in excess of five years or more would constitute "cruel and inhumane punishment" so as to render it unconstitutional. This rather unrealistic timeframe for the not so swift Caribbean Courts has caused some outcry among member States, such as Jamaica, who favour capital punishment. Some argue that the decision in Pratt seemingly has upset certain Caricom members and has produced a sense of urgency to move towards the development of the CCJ in an attempt to secure more desirable judgments on capital punishment cases contrary to the ruling in Pratt. This taint will certainly leave a sour taste in the mouths of all those territories who have moved towards the abolition of the death penalty and who are looking to the Commonwealth Caribbean to do the same. This may severely impede and even retard diplomatic international relations between Commonwealth Caribbean States ad the rest of the world. Investor Confidence the general concerns are that the removal of the Privy Council may deter current as well as potential foreign investors from the jurisdictions and therefore ultimately compromise the economic development goals and objectives of Caricom in a significant way. The Privy Council is court of the highest repute which has been widely commended for its delivery of sound and consistent judgments and has truly distinguished itself as a Court with a prestigious reputation. Foreign investors have confidence in that Court, that it will consistently apply the Rule of Law, should there be for instance, disagreements as to loan arrangements and contractual terms. Against this background, it has been recommended that the

Caribbean Community should remain with the Privy Council and ultimately abandon its move to set up its own final court of appeal. There is an already existing body of precedent on which the Privy Council may rely for judicial guidance. Decisions handed down by the CCJ acting in its original jurisdiction may not be enforceable and member states against whom decisions have been made may simply flout decisions of the CCJ which adversely affect them. Arguments for the Establishment of the Caribbean Court of Justice (CCJ)/ Against the Continuation of Appeals to the Privy Council. Original Jurisdiction The role envisaged for the Caribbean Court of Justice in this regard is analogous to that of the European Court of Justice. It is intended to provide the judicial competence which is vital to the success of the Caricom Single Market Economy. In an era of rapid and widespread globalization, where for example Europe has made the transitional shift from a common market economy to the European Union, developing countries have found it increasingly difficult to trade and compete in the exchange of goods and services for regional and international markets. Such a concern amongst Caricom member states has brought about the inevitable Caricom Single Market Economy (CMSE). The establishment of the CSME is seen as the fruit emanating from the seeds of the Treaty of Chaguaramas. Essentially the Treaty of Chaguaramas was created to facilitate trade within the Caribbean Region and to provide its Caricom members with a more competitive edge thus establishing a level playing field both within the region and the international arena. This approach is not dissimilar to that adopted in Europe. Europe has witnessed the evolution of the Coal and Steel Agreement and the Maastritch Treaty leading up to the formation of the European Union. Much attributed to the development of the European Union is the strong presence of the European Justice system whereby disputes are resolved in the interest of Europe as a whole rather than in the interest of potentially conflicting member states. This approach is seen as essential in shaping the way forward for Europe and crucial to the success of competing in a globalized era. 3

Appellate Jurisdiction - It is anticipated that the CCJ in its appellate jurisdiction will better assist in the development of regional jurisprudence as opposed to the Privy Council, which is regarded by some countries as being far removed from the Caribbean both geographically and culturally. Part III of the Agreement provides that in the exercise of its appellate jurisdiction, the Court will act as a superior Court of record with such jurisdiction and powers as are conferred on it by the Agreement or by the constitution or any other law of a contracting Party. Therefore Appeals shall lie to the Court from decisions of the Court of Appeal of the respective Caricom member States. Some are of the view that by continuing to refer matters to the Privy Council, independent Caribbean countries demonstrate that they remain only at the penultimate stage of independence. The CCJ will secure the full independent status of the former colonies of the commonwealth Caribbean. It will help to create a judicial system which reflects the culture of the peoples of the Commonwealth Caribbean States. To address the cost issues and in an attempt to ensure the impartiality of the CCJ and to be certain that its Judges are not subject to or held ransom by the self-interests of various Governments, a Trust Fund has been established to address these and other concerns of potential corruption. The argument has also been made, against the Privy Council and in favour of the CCJ, that the Privy Council is too far removed from the region and does not fully appreciate the regions local circumstances. The Privy Council is too costly to individual litigants while the CCJ, a regional court is not expected to cost the individual litigant much in the way of fees of expenses. The Privy Councils jurisdiction is limited as it only functions as a court of final appeal whilst the CCJ dual and unique jurisdiction will effectively provide for decision making in respect of Caricom

treaty issues, which previously had no real Court in respect of which members states could brings their grouses. The Privy Council hears a limited number of matters each year ad permission to appeal to Privy Council is required in some instances. The Privy Council has been criticized for slavishly follows precedent in some instances, though it is not bound to do so. The Privy Council, to some extent, does not reflect the needs and mores of the people over which it presides. Though investor confidence is presently at a minimum in relation to establishment of the CCJ, that court will provide a solid judicial foundation and overtime may come to evidence such the judicial competence which will ultimately secure investor confidence and the success of the CSME. Prepared by: Ms. Kedian T. Francis Lecturer Faculty of Law The University of Technology