A comparative analysis of the canadian and caribbean progressions towards judicial independence: perspectives on the Caribbean Court of Justice
| Author | Vannina Ettori |
| Position | Studied Common Law at die Univetsity of Cambridge, Civil Law at I'Universitd Fanihion-Assas, as well as Political Science at McGill University |
| Pages | 100-124 |
A
COMPARATIVE
ANALYSIS
OF
THE
CANADIAN
AND
CARIBBEAN
PROGRESSIONS
TOWARDS
JUDICIAL
INDEPENDENCE:
PERSPECTIVES
ON
THE
CARIBBEAN
COURT
OF
JUSTICE
VANNINA
ETTORI*
Introduction
On
the
eve
of
the
inauguration
of
the
Caribbean
Single
Market
and
Economy,
planned
for
December
2004,
1
the
member
countries
of
the
Caribbean
Community
2
are
gearing
up
for
the
launch
of
the
Caribbean
Court
of
Justice.
The
Caribbean
Court
of
Justice
(CCJ)
is
expected
to
take
up
its
functions
before
April,
2004
,
3
over
a
year
after
the
Ag
ree
ment
Establishing
the
Caribbean
Court
of
Justice
(AECCJ)
came
into
force
.
4
Its
jurisdiction
is
two-fold:
the
CCJ
will
settle
disputes
arising
out
of
the
interpretation
and
application
of
the
CARICOM
treaty;
in
this
respect,
the
AECCJ
has
instituted
an
original
jurisdiction
for
the
CCJ*
The
CCJ
will
also
act
as
a
final
court
of
appeal
for
Caribbean
states,
5
thus
adopting
an
appellate
jurisdiction
as
well,
which
for
many
of
the
English-tradition
islands
will
involve
a
replacement
of
the
Judicial
Committee
of
the
Privy
Council,
a
British
imperial
institution
currently
serving
Vannina
Ettori
studied
Common
Law
at
the
University
of
Cambridge,
Civil
Law
at
FUniversit
é
Panth
é
on-Assas,
as
well
as
Political
Science
at
McGill
University
.
Her
research
interests
include
comparative
law,
international
human
rights
law,
and
the
law
of
the
European
Union.
She
is
grateful
to
the
International
Justice
Project,
to
Anthony
Vaughan
for
directing
her
towards
useful
materials,
and
to
Timothy
Radcliffe
for
co
t
ribucions
from
a
Canadian
Constitutional
Law
perspective.
1.
“
Wakeup
Cail
t
o
Establish
Caribbean
Court
of
justice,
”
Black
Britain
[on-line
edition]
,
June
17,2003;
available
at
http.
//
www.blackbritain.co.uk/New$/New$.a$p?i=276&c=caribbean
.
2.
The
Caribbean
Community,
or
CARICOM,
is
a
community
promoting
regional
political
and
economic
cooperation.
See
wwwcaricom.org
.
3.
Rickey
Singh,
“
CARICOM
running
out
of
time
on
CSME,
CCJ,
”
The
Jamaica
Observer,
online
edition,
January
5,
2004.
4.
“
Caribbean
Court
of
Justice,
”
in
Projects
on
International
Courts
an
d
Tribunals
;
available
at
http://www.pict-pcti.org/cour
t
s/CCJ.html
5.
The
AECCJ
provides
that
the
CCJ
will
be
available
not
only
to
states
members
of
the
CARICOM,
but
also
to
other
Caribbean
states
for
which
membership
would
be
an
option.
See
Art.
11.
b.
of
the
AECCJ.
as
final
appeals
court
in
remnant
Commonwealth
Dominions
around
the
world,
including
the
Caribbean.
These
provisions
are
unique
in
that
it
is
the
first
time
that
a
regional
court
will
be
handling
such
dissimilar
jurisdictions,
one
focusing
mostly
on
commercial
arguments
in
a
trade
union,
the
other
concerning
mostly
national
constitutional
and
criminal
law
appeals.
The
focus
of
this
interdisciplinary
paper,
however,
will
be
on
the
CCJ
’
s
appellate
jurisdiction
only.
The
Judicial
Committee
of
the
Privy
Council
(JCPC)
originally
maintained
an
appellate
jurisdiction
over
all
of
its
former
colonies
at
independence.
One
by
one,
however,
these
Dominions
chose
to
further
liberate
themselves
from
Britain
’
s
imperialist
grasp
and
create
their
own
national
Supreme
Court.
The
JCPC
’
s
largest
surviving
jurisdiction
resides
in
the
Caribbean
and,
with
the
CCJ,
seems
at
risk
of
disappearing
even
there.
The
establishment
of
the
CCJ
in
April
2004,
however,
does
not
necessarily
imply
that
there
will
be
no
remaining
work
for
the
Privy
Council;
the
AECCJ
specifically
permits
a
reservation
to
its
Article
XXV,
the
Article
responsible
for
the
appellate
jurisdiction.
Indeed,
the
main
attraction
to
the
Agreement
is
the
impact
it
will
have
on
CARICOM
as
a
trade
union;
CARICOM
countries
do
not
want
to
miss
out
on
the
benefits
of
the
trade
union,
for
which
adoption
of
the
original
jurisdiction
is
mandatory.
CARICOM
countries
are
thus
induced
into
ratifying
the
AECCJ,
but
where
they
do
not
feel
ready
to
introduce
the
CCJ
into
their
national
appellate
system
as
a
regional
final
court
of
appeal,
they
may
make
a
reservation
on
Article
XXV.
This
seems
to
be
what
the
opposition
party
in
Trinidad
and
Tobago
may
coerce
its
government
into
doing.
It
has
given
indications
that
it
will
not
support
the
CCJ
’
s
appellate
jurisdiction.
6
This
political
move
corresponds
to
an
expression
of
surprising
self-restraint;
indeed,
why
would
a
nation
not
wish
to
accede
to
a
Supreme
Court
more
relevant
to
its
cultural
context
and
to
its
nationalistic
aspirations,
and
which
it
will
be
hosting
in
its
own
capital?
7
6.
“
Trinidad
’
s
CCJ
Dilemma,
”
The
Jamaica
Observer
,
online
edition,
June
16,
2003.
7.
Port
of
Spain
is
to
be
the
seat
for
the
CCJ.
8.
Supra,
footnote
6.
9.
Article
V,
which
establishes
an
independent
Commission
with
the
function
of
appointing
judges
to
the
CCJ,
and
Article
IX,
which
guarantees
the
judges
’
tenure
of
office.
The
opposition
party,
the
United
National
Congress,
claims
it
has
apprehensions
as
to
the
independence
of
the
new
court.
8
This
statement
comes
despite
provisions
in
the
AECCJ
specifically
providing
for
the
independence
of
the
Court
’
s
judges.
9
Regional
politicians
are
indeed
known
to
exert
pressure
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