NicholsonAttorney-General Senator A.J. Nicholson, last Friday, tabled Ministry Paper 15/03 in the Senate which sets out the progress regarding the establishment of the Caribbean Court of Justice. Below are excerpts of the Ministry Paper.
A NUMBER of Ministry Papers relating to the establishment of the Caribbean Court of Justice have in the past been laid in Parliament. Reference is made to those earlier Ministry Papers and, in particular, to Ministry Paper No. 41/98 which sets out the initiative of the Organisation of Commonwealth Caribbean Bar Associations which provided the impetus for the establishment of the Court and the developments following that initiative.
Earlier Ministry Papers also discussed the reasons for the establishment of the Court, the vital role of the Court in the deepening of the process of Caribbean regional integration and in the full attainment of political sovereignty and independence, the ability of the region to provide Caribbean judges of the highest integrity and competence to constitute the Region's highest appellate court, and the measures taken to ensure the insulation of judicial appointments from political influence and initial proposals for securing sound financial arrangements for the Court matters which were of public concern to the people of the Region.
The attention of members of Parliament is invited, therefore, to those earlier Ministry Papers for information on the developments which constitute the background to the establishment of the Caribbean Court of Justice.
At the 20th Meeting of the Conference of Heads of Government of the Caribbean Community held in Port of Spain, Trinidad and Tobago in July 1999, a decision was taken to proceed with the establishment of the Caribbean Court of Justice as a court of original jurisdiction to hear and determine matters relating to the interpretation and application of the Treaty Establishing the Caribbean Community signed at Chaguaramas in 1973 and any amendments to that Treaty, and as a court of appellate jurisdiction to replace the appellate jurisdiction of the Judicial Committee of the Privy Council.
In order to expedite the process, the meeting of Heads of Government also mandated the establishment of a Preparatory Committee charged with the responsibility of making the appropriate arrangements for the establishment and inauguration of the Caribbean Court of Justice prior to the establishment of the CARICOM Single Market and Economy, and of developing and implementing a programme of public education within the Caribbean Community to enhance public understanding and public awareness of, and public involvement in the process.
The Agreement Establishing the Caribbean Court of Justice (the Agreement) was, on February 14, 2001, at the 12th Inter-Sessional Meeting of CARICOM Heads of Govern-ment, opened for signature by Member States of the Caribbean Community and by any other Caribbean country invited by the Conference of CARICOM Heads of Government to become a party to it. Jamaica, in accordance with resolutions of both Houses of Parliament, was one of 10 CARICOM Member States to sign the Agreement at that Meeting in Barbados.
The Agreement entered into force on July 23, 2002, pursuant to Article XXXV, upon the deposit of instruments of Ratification or Accession by three CARICOM Member States, namely, Barbados, Guyana and St. Lucia. Since then the Agreement has been ratified by Belize and Trinidad and Tobago also.
AUTHORISATION TO THE CARIBBEAN DEVELOPMENT BANK TO BORROW THE AMOUNT TO ESTABLISH THE TRUST FUND TO FINANCE THE COURT
The Caribbean Community has always maintained that the Caribbean Court of Justice should not come into being without ensuring its financial security on a sustainable basis. CARICOM Heads of Government therefore decided, initially, that, before the inauguration of the Court, funds should be secured for this purpose for a period of five years. It was determined that the sum of US$21 million represented the full cost of operating the Court for five years and that it was the responsibility of Member States to furnish that
sum in the first instance. It was further decided that a Trust Fund for that purpose would be established at the Caribbean Development Bank.
At the 23rd Meeting of the Conference of CARICOM Heads of Government held in Guyana in July 2002, however, the Heads of Government agreed with the Preparatory Committee that the preferred option was the establishment of a one-time settlement of US$100 million, as the investment of such a Fund would secure the financing of the Court for all time.
The Meeting in Guyana also agreed to authorise the President of the Caribbean Development Bank to raise the amount of US$100 million on the international capital market to establish the Trust Fund, and that the Bank would then on-lend the money to the CARICOM Member States which would be required to make repayment of the loan on the basis of a submitted formula.
The President of the Caribbean Development Bank has made it clear that ratification of the Agreement would strengthen the hand of the Bank's negotiators in their efforts to raise the required funds on the international capital market. Those CARICOM Member States which have not yet ratified the Agreement by Jamaica, one of the major signatories to the Agreement, is therefore clearly, now, a crucial matter.
The amount of Jamaica's contribution to the Trust Fund, calculated on the basis of a standard and long-standing CARICOM formula is US$26,882,876.
LEGISLATION NECESSARY FOR THE IMPLEMENTATION OF THE AGREEMENT
Ratification of the Agreement by Jamaica, as is well understood, will not of itself bring the Caribbean Court of Justice into existence. Ratification, however, will constitute a commitment by Jamaica, at the international level, to put in place the various legislative instruments required for the implementation of the Agreement.
Implementation of the Agree-ment will require legislation in relation to the following matters:
(i) the establishment of the Caribbean Court of Justice as a court of original jurisdiction to hear and determine matters relating to the interpretation and application of the Treaty establishing the Caribbean Community signed at Chaguaramas in 1973 and any amendments to that Treaty, applying for that purpose rules of international law;
(ii) the establishment of the Court as a court of appellate jurisdiction in place of the jurisdiction of the Judicial Commit-tee of the Privy Council in relation to appeals from Jamaica's Court of Appeal and as Jamaica's highest appellate court;
(iii) the abolition of appeals to Her Majesty in Council (the Judicial Committee of the Privy Council); and
(iv) the establishment of the Regional Judicial and Legal Services Commission (the Regional Commission), and to give effect to related provisions of the Agreement and any consequential matters.
The establishment of the Regional Commission and of the Caribbean Court of Justice will also require the conferment of immunities and privileges, under the Diplomatic Immunities and Privileges Act, on the Court and Commission and on its members, on the judges and officers of the Court, and on the agents and attorneys and other persons appearing in proceedings before the Court, performing missions for the Court or invited to the Court or the offices of the Commission on official business.
The abolition of appeals to the Privy Council will require the repeal of section 110 of the Constitution, a non-entrenched provision of the Constitution which now provides for such appeals, and the replacement of that section by provisions conferring rights of appeal from the Court of Appeal to the Caribbean Court of Justice as provided in the Agreement.
Section 35 of the Judicature (Appellate Jurisdiction) Act provides for certain rights of appeal by the prosecution and the defendant to Her Majesty in Council in criminal matters. The replacement of the appellate jurisdiction of the Judicial Committee of the Privy Council by the appellate jurisdiction of the Caribbean Court of Justice will therefore require the amendment of section 35 of the Judicature (Appellate Jurisdic-tion) Act also.
Transitional provisions will of course be needed in relation to appeals to the Judicial Committee of the Privy Council instituted before the coming into force of the legislation establishing the Caribbean Court of Justice, and in relation to appeals pursuant to leave or special leave granted before that time, or in respect of which applications for such leave was made before that time.
RATIFICATION OF THE AGREEMENT
Jamaica has consistently maintained its intention to ratify the Agreement in accordance with its domestic legal requirements and has participated in an intense public education campaign to familiarise the people of the Caribbean with the proposals for the establishment of the Caribbean Court of Justice.
In view of the urgent need for ratification of the Agreement to facilitate and expedite arrangements for the financing of the establishment and operations of the Court, a Resolution for the approval of such ratification is now to be laid in both Houses of Parliament.
It is intended that the period between the ratification of the Agreement and passage of the legislation required for its implementation should be as short as possible. The enactment of the necessary legislation will therefore be treated as a matter of the highest priority so that there will be no unnecessary delay in putting that legislation in place. A Cabinet decision has already been taken with respect to proposals submitted to the Cabinet for the enactment of the necessary legislation, and instructions have been issued to the Chief Parliamentary Counsel for the preparation of the legislation required.
