The Caribbean Court of Justice (CCJ or CCtJ; ; ) is the judicial institution of the Caribbean Community (CARICOM). Established in 2005, it is based in Port of Spain, Trinidad and Tobago.
The Caribbean Court of Justice has two jurisdictions: an original jurisdiction and an appellate jurisdiction:
In its original jurisdiction, the court interprets and applies the Revised Treaty of Chaguaramas (which established the Caribbean Community), and is an international court with compulsory and exclusive jurisdiction in respect of the interpretation of the treaty. In its appellate jurisdiction, the court hears appeals as the court of last resort in both civil and criminal matters from those member states which have ceased to allow appeals to the Judicial Committee of the Privy Council (JCPC). , Barbados, Belize, Dominica, Guyana and St. Lucia have replaced the JCPC's appellate jurisdiction with that of the CCJ.
National referendums undertaken in Antigua & Barbuda (2018), and Grenada (2018) resulted in the majorities of those nations rejecting the switch of final court of appeals from the Judicial Committee of the Privy Council of the United Kingdom to the CCJ. A previous referendum undertaken in Saint Vincent and the Grenadines in 2009 was also rejected by a majority of voters, although that proposed constitution did not substitute the CCJ for the Privy Council, but rather codified the possibility of doing so via constitutional reform among other proposed changes such as making Saint Vincent and the Grenadines into a republic.
Overview
The CCJ is intended to be a hybrid institution: a municipal court of last resort and an international court vested with original, compulsory and exclusive jurisdiction in respect of the interpretation and application of the Revised Treaty of Chaguaramas. In the exercise of this original jurisdiction, the CCJ discharges the functions of an international tribunal, applying rules of international law in respect of the interpretation and application of the treaty. The CCJ thus performs similarly to the European Court of Justice, EFTA Court, East African Court of Justice, the ECOWAS Community Court of Justice, the Andean Court of Justice and the International Court of Justice. In contrast to many general international tribunals or courts, the original jurisdiction of the CCJ is compulsory, requiring no pre-existing agreement.
As a municipal court of last resort, it exercises an appellate jurisdiction, as a final court of appeal for CARICOM member states, replacing the Judicial Committee of the Privy Council (JCPC) for Anglophone member states. In the exercise of its appellate jurisdiction, the CCJ hears appeals from common law courts within the jurisdictions of parties to the Agreement Establishing the CCJ, and is the highest municipal court in the region.
While the CCJ has jurisdiction in all member states of the Agreement Establishing The Caribbean Court of Justice, the Agreement itself provides for the CCJ's jurisdiction to also be available to any other state within the Caribbean that CARICOM should choose invite to become a party to the Agreement. Thus the appellate jurisdiction of the Court, in particular, could be available to a non-CARICOM Caribbean state or to CARICOM's associate member states.
Unlike some international courts (but similar to others such as the ECJ and EFTA Court), cases between member states, between CARICOM nationals, or between nationals and the state are all justiciable under the CCJ.
Appellate decisions of the court are delivered with signed majority opinions, concurrences and dissenting opinions, as well as a record of which judges voted for the ruling and which voted against it. As a result, CCJ appellate opinions do not shield judges behind a singular and collective "voice of the court" as the ECJ and the CCJ's original opinions do, and the practice is in keeping with the normal procedures of municipal courts. This may actually aid in providing transparency to the regional court operating in an environment where many of its citizens are distrustful of their local judiciaries.
By contrast, judgments or advisory opinions under the original jurisdiction of the Court are published in a single judgment of the court once the majority of judges have reached a conclusion after final deliberation. No other judgments or opinions are permitted to be given or delivered. This is in keeping with the practice of the ECJ and EFTA Court as international courts.
Although there is no ratio or quota for judges based on sex or nationality, most CCJ judges previously sat at a national level or previously taught law for 15 years or more. At least one member of the panel is required to be an expert in international law and one judge is also required to be from the civil law tradition, reflecting the presence of civil law jurisdictions such as Suriname and Haiti.
Comparison with the Judicial Committee of the Privy Council
Initially being created as a replacement for the Privy Council or JCPC, and later being tasked with the original jurisdiction over the interpretation of the Revised Treaty of Chaguaramas, the CCJ replicates certain aspects of the British justice system while being divergent in other ways.
Both the CCJ and JCPC have a president of the Court and have a smaller panel of judges being called up for any one particular case from a larger pool of eligible judges. For the JCPC, five judges normally sit on appeals from Commonwealth countries, while three to five judges normally sit on the CCJ for cases, although at times all the eligible judges have sat for a case.
A major difference though is in the pool of eligible justices from which the deciding panel is called. For the JCPC has no explicit limit on the number of eligible jurists, while for the CCJ the initial limit is nine judges other than the president (though this limit may be increased by the agreement of all the member states). The actual number of judges eligible for JCPC at any given time is actually difficult to determine with one 2009 estimate having ninety-five jurists, of which only three were Caribbean judges. The primary decision makers in the JCPC's pool are the privy councillors who also serve as judges on the Supreme Court of the United Kingdom and tend to be the only ones listed on the JCPC's website. No Caribbean judges, however, have sat on the JCPC since 2009 when the JCPC was co-located with the new Supreme Court of the United Kingdom.
As a result of the JCPC's employment of a large pool of jurists but usage of only a fraction of them, the JCPC has been criticized for the fact that decisions for any one case often depends on the judges called. The possible combinations of judges available means that different decisions can be rendered for very similar fact patterns in cases. This issue becomes particularly relevant when an appeal comes from a Caribbean country as it may be difficult for judgments to be handed down based on the nuances of Caribbean society when it is unlikely that a majority of judges on the panel for a case would come from the Caribbean. As one Caribbean lawyer lobbyist (initially an opponent of the CCJ) noted: "What is the "reasonable man" test in the Caribbean? Acts of provocation in England and the Caribbean may not be the same....... In the Caribbean, even express words may have different connotations. These are the types of questions that need to be discussed by an indigenous tribunal..."
Cost comparisons for litigants and states
As comparable appellate courts, the CCJ and JCPC as outlined above have similar procedures, but there are major differences in both the time and money that would need to be spent by individual litigants and states in pursuing cases to either court.
Individual litigants are expected to almost always face reductions in the costs associated with pursuing their cases whenever a switch to the CCJ is made. For instance the cost of filing an appeal with the JCPC is more than five times greater than filing an appeal with the CCJ. For the JCPC, the filing of an application for permission to appeal along with the actual notice of appeal would have cost £220, or roughly US$350 in 2013, while the CCJ requires no payment for filing an application for permission to appeal and the cost for filing a notice of appeal was US$60. In 2015, the new filing fees for the JCPC were noted as ranging from £400 to £5,000 or roughly US$600 to US$7,500 while the comparable fees for the CCJ remained at US$60 thus making the cost of filing an appeal with the JCPC at least ten times greater than filing an appeal with the CCJ.
Although both courts do allow appeals in forma pauperis, waiving filing fees when they are deemed too burdensome on the individual litigant, the JCPC does so on a more limited basis.
Some of the highest costs for litigants however arise when litigation of the case actually begins. In most cases, litigants will have to travel to the United Kingdom (UK) to pursue their cases before the JCPC. This may involve purchasing plane tickets and/or finding and hiring lawyers licensed in the UK. Additionally, Jamaican citizens are required to obtain visas before travelling to the UK, and for these citizens the cost of a UK visa would range from £85 to £737 (or US$131 to US$1,138) depending on the type of visitor visa applied for. Regardless of whether or not a visa is required, all litigants would also have to pay for accommodation and any other necessary expenses in the UK for the duration of the litigation. All of this adds up as a very expensive appeals process; one estimate placed the average total cost between US$57,000 and US$87,500. Given the generally low number of appeals coming from the smaller CARICOM states and sometimes from larger CARICOM states such as Jamaica, in effect the local courts of appeal are the courts of last resort for the majority of CARICOM litigants who cannot afford to take their appeals to the JCPC and must therefore be satisfied with the judgments of the local courts of appeal.