CCJ President Justice Adrian Saunders
EDINBURG, Scotland, CMC- President of the Trinidad-based Caribbean Court of Justice (CCJ) Justice Adrian Saunders says despite its challenges, the Court, which was established to replace the London-based Privy Council as the region’s final and highest Court, “remains resilient and optimistic.”
The CCJ was established in 2001. While most of the Caribbean Community (CARICOM) countries are signatories to its Original Jurisdiction, only Barbados, Belize, Dominica, St. Lucia, and Guyana are members of its Appellate Jurisdiction. In addition, the CCJ functions as an international court interpreting the Revised Treaty of Chaguaramas, which governs the regional integration movement.
Delivering the annual Macfadyen Lecture here, Justice Saunders spoke on the theme “Caribbean Court of Justice at 20 years,” providing an in-depth examination of the regional Court.
“I believe that it says something for the vitality of the rule of law in the Caribbean that all the judgments of the CCJ have been fully and promptly complied with, especially given that, in not a few of these cases, incumbent governments were on the losing side of the litigation, and the orders made by the Court must have been very bitter pills to swallow,” he told the audience.
He said that despite the challenges, the CCJ remains “resilient and optimistic” and that the judges and staff of the Court are fully cognizant that establishing the CCJ “is perhaps the most impactful decision ever made by the Caribbean Community.”
“We see ourselves as stewards. As should be the case in a well-functioning democracy, a healthy dialogue occurs between the CCJ and the Parliaments of the various States through our decision-making.
“In not a few instances, legislatures have enacted new or amended existing legislation and legal procedures to accord either with our judgments or intimations contained in those judgments.”
Justice Saunders said that no court anywhere in the world can honestly state that it has attained perfection, but every Court must continuously aim for perfection.
“A court is one of excellence if it always so strives, and, in this regard, the CCJ makes every effort to live up to its vision “To be a Model of Judicial Excellence.”
The Macfadyen Lecture series was established in 2010 by the Scottish Council of Law Reporting to commemorate the late Lord Macfadyen, who had served as a member of the Council. The annual event invites esteemed jurists from around the world to discuss important aspects of law and the administration of justice.
In his address, Justice Saunders emphasized the CCJ’s vision of being a model of judicial excellence despite social challenges, adding, “I hope I have not painted too rosy a picture of a court that faces important challenges.”
He said the main challenge faced by the CCJ in pursuing its mandate, which is to play “a determinative role in the further development of Caribbean jurisprudence through the judicial process,” is the relatively modest uptake in cases filed in both the Original and Appellate jurisdictions.
“The reasons for this are varied. In the Original Jurisdiction, the bulk of the legal fraternity in the Caribbean is not particularly experienced in litigation based on international law. Nor are the lawyers well-versed in the provisions of the Revised Treaty.
“They are often, therefore, not particularly alert to advise on or exploit potential opportunities for advancing their clients’ causes in matters related to the Revised Treaty. On the other hand, municipal judges have not referred any of the few disputes that have come before them which could benefit from an interpretation by the CCJ of this or that provision of the Treaty.”
Justice Saunders said that to try to address this problem, over the last two years, the CCJ has been hosting a series of seminars with these stakeholders and the business community to explain the provisions of the Revised Treaty, the rights it confers on Caribbean nationals, and the role of domestic courts in implementing the Revised Treaty.
He said the European Union has provided funding for that project.
He told the audience that in the Appellate Jurisdiction, the question always asked of the CCJ is why less than one-half of eligible Caribbean states altered their Constitutions to accede to the Appellate Jurisdiction of the CCJ.
“Why don’t the other states also send their final appeals to a court for which their tax dollars have been handsomely paid? The reasons here are also varied. One of them is that extraordinary constitutional hurdles must first be overcome.”
Justice Saunders said Grenada and Antigua and Barbuda, for example, have been saddled with independence constitutional provisions that require those governments to obtain a qualified parliamentary majority in support of the measure and garner a two-thirds vote at a popular referendum.
“On three separate occasions, the governments of these two States easily obtained the qualified parliamentary majority, but on each occurrence, the measure failed at the level of the popular referendum.”
Justice Saunders said in Jamaica, where the Constitution does not ostensibly prohibit parliament by ordinary majority from altering that country’s Constitution when the Jamaica parliament did so in 2004 using a bare parliamentary majority, “the Privy Council, overriding the local courts, voided the measure by implying into the Constitution the need for at least a qualified majority parliamentary vote.”
The St. Vincent and Grenadines-born jurist said that, quite apart from the objective constitutional hurdles, there are other factors at play.
“In any country, only a few cases ever reach the final appellate Court. In the countries that have not yet acceded, the masses still know relatively little of the CCJ or fully appreciate its seminal value to developing Caribbean society and jurisprudence.
“Many consider that there are far more important bread and butter issues with which their government should concern itself. It is also true that, despite the impressive institutional and administrative measures employed by the CCJ to ensure transparency, consistency, access to justice, and judicial independence, some people still consider that British justice will always be purer.”
Justice Saunders, who officially retires from office on July 3 this year, said regrettably that such thinking is also a legacy of colonialism.
“To be fair though, generally speaking, there is not the highest regard for municipal and State institutions in the region. Only the countries of Barbados, The Bahamas, St Vincent and the Grenadines, and Dominica join the United Kingdom in ranking in the top 20 percent of Transparency International’s 2024 Corruption Perception Index, and many persons make no distinction between the CCJ, a self-governing international entity, and local municipal institutions.”
He said that mixed messaging from London has not helped.
“Consider these two related questions. In principle, Is an independent, well-staffed Caribbean court the most suitable vehicle for determining Caribbean final appeals? Are the UK’s top judges spending an inordinate amount of time in the Privy Council hearing appeals that should ideally be heard by a Caribbean court explicitly established to listen to these appeals?
“It might surprise you to learn that since the Agreement Establishing the CCJ was signed, fulsome but contradictory answers to these straightforward questions have been publicly advanced by the most senior British judges,” Justice Saunders told the audience.
He said the most crucial roles of a final appellate Caribbean court are to protect and advance democracy and the rule of law and to expound the country’s written Constitution.
“In fulfilling these roles, it is often necessary to tackle difficult or ‘grey areas’ of the law and, in the process, to weigh and settle on one of the almost equally persuasive contending views. Appropriate resolution of these grey areas necessarily involves judgment and an element of judicial policy-making.
“Law, after all, is not mathematics, and a written Constitution is not to be interpreted as one might a Tax Code. The construction of a Constitution cannot be divorced from its social, environmental, and cultural context and a deep appreciation of its historical roots.
“Judges who are naturally alienated from the pulse of a society, from the narrative that guides and animates that society and who do not personally experience the consequences of the decisions they make are not ideally positioned to offer binding prescriptions to govern that society.”
He said that the CCJ has heard at least 37 cases in its Original Jurisdiction and App
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