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 and 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 that gov­ern­ment 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 de­spite the chal­lenges, the CCJ re­mains “re­silient and op­ti­mistic” and that the judges and staff of the Court are ful­ly cog­nizant of the fact that the es­tab­lish­ment of 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, through our de­ci­sion-mak­ing, a healthy di­a­logue takes place be­tween the CCJ and the Par­lia­ments of the var­i­ous States.

“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 a state of 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 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 em­pha­sised the vi­sion of the CCJ to be a mod­el of ju­di­cial ex­cel­lence de­spite so­cial chal­lenges, adding “I hope I have not paint­ed too rosy a pic­ture of a court that ac­tu­al­ly faces im­por­tant chal­lenges”.

He said the main chal­lenge faced by the CCJ in pur­suit of its man­date, which is to 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 that is 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 the caus­es of their clients in mat­ters re­lat­ed to the Re­vised Treaty. Mu­nic­i­pal judges, on the oth­er hand, 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 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 in or­der to ex­plain the pro­vi­sions of the Re­vised Treaty, the rights it con­fers on Caribbean na­tion­als and the role of do­mes­tic courts in the im­ple­men­ta­tion of the Re­vised Treaty.

He said fund­ing for that project has been pro­vid­ed by the Eu­ro­pean Union.

He told the au­di­ence that in the Ap­pel­late Ju­ris­dic­tion, the ques­tion that is 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 there are ex­tra­or­di­nary con­sti­tu­tion­al hur­dles that must first be over­come.”

Jus­tice Saun­ders said Grena­da and An­tigua and Bar­bu­da, for ex­am­ple, have been sad­dled with in­de­pen­dence con­sti­tu­tion­al pro­vi­sions that ab­solute­ly re­quire those gov­ern­ments not just to ob­tain a qual­i­fied par­lia­men­tary ma­jor­i­ty in sup­port of the mea­sure but ad­di­tion­al­ly to 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 an ex­treme­ly small num­ber of cas­es ever reach­es the fi­nal ap­pel­late court. In the coun­tries that have not yet ac­ced­ed, the mass of peo­ple still know rel­a­tive­ly lit­tle of the CCJ or ful­ly ap­pre­ci­ate its sem­i­nal val­ue to the de­vel­op­ment of Caribbean so­ci­ety and Caribbean 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, in spite of 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 who of­fi­cial­ly re­tires from of­fice on Ju­ly 3 this year, said re­gret­tably, 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 per cent 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 their time in the Privy Coun­cil hear­ing ap­peals that should ide­al­ly be heard by a Caribbean court that has been es­tab­lished specif­i­cal­ly to hear 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 for his part, the most im­por­tant 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 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. 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, more­over, 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 the Orig­i­nal Ju­ris­dic­tion and in its Ap­pel­late Ju­ris­dic­tion, the CCJ is per­haps best known for its judg­ments that ad­vance the rule of law and ad­dress cir­cum­stances where lit­i­gants seek re­dress for al­leged breach­es of their con­sti­tu­tion­alised rights.