Guardians of Justice – Exploring the Immunities Safeguarding the Caribbean Court of Justice and the Regional Judicial and Legal Services Commission
BY: NIKEIYA HENVILE
Nikeiya Henvile
Attorney-at-Law
Martin Anthony George & Company
“The development of the principle of the rule of law is credited to the Greek philosopher Aristotle whose view was that “it is more proper that law should govern than any one of the citizens”. In other words, even the King, the supreme ruler, should be under the law… The people of this Federation [the Federation of St Christopher St Kitts and Nevis], like the people of the entire Caribbean, must jealously guard and protect the rule of law, in part because as a people we have come such a very long way in such a comparatively short time.”-The Honourable Mr. Justice Adrian Saunders, in delivering a presentation entitled ‘The Rule of Law in the Caribbean’. [1]
In the sun-kissed landscapes of the Caribbean, a crucial call echoes- the imperative to safeguard the essence of justice through the unwavering protection of the rule of law. Through this crucial statement included in Mr. Justice Saunders’ presentation, one comprehends why specific institutions are provided with safeguards to preserve the rule of law. Immunities are conferred upon certain institutions to guarantee the upholding of the rule of law. These institutions include the Caribbean Court of Justice (hereinafter referred to as the “CCJ”) and the Regional Judicial and Legal Services Commission (hereinafter referred to as the “RJLSC”). The legal landscape surrounding the CCJ and the RJLSC is defined by a comprehensive legislative framework that grants immunity to personnel involved in these institutions. This article, therefore, explores the legislative measures supporting immunity for both the CCJ and RJLSC.
What is the RJLSC?
The RJLSC is a body that was established on the 14th of February 2001 by the ‘Agreement Establishing the Caribbean Court of Justice’. The RJLSC plays a vital role in the Caribbean Community (CARICOM) by overseeing the appointment of Judges and legal professionals. The RJLSC exercises supervisory control over the CCJ for administrative and staff members, by determiningthe terms and conditions of service of officials and employees, and the termination of appointments.
What is the CCJ?
The CCJ is the Caribbean regional judicial tribunal established on the 14th of February 2001 by the ‘Agreement Establishing the Caribbean Court of Justice’. 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.
On the 14th day of February 2001, the ‘Agreement Establishing the Caribbean Court of Justice’ (hereinafter called “the Agreement”) was executed by Heads of Government of the Caribbean Community, and as previously stated, it established both the RJLSC and the CCJ. This Agreement came into force on the 23rd day of July 2003.[2]
Immunities: –
The Caribbean Court of Justice Act Chapter 4:02 of the Laws of Trinidad & Tobago, (hereinafter referred to as the “CCJ Act”), which implements the said Agreement by virtue of section 3, provides certain immunities for the CCJ and the RJLSC in Protocol 1 in the Second Schedule to the CCJ Act.
Firstly, Article II entitled “Property, Funds, and Assets of the Court and the Commission” endows the CCJ and the RJLSC’s property and assets with immunity from every form of legal process. The article specifically states:
“1. The Court, the Commission, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case such immunity has been expressly waived in accordance with Article X. No waiver of immunity shall extend to any measure of execution.”
The property and assets of the CCJ and the RJLSC are therefore immune from any type of confiscation, search, or any form of interference by executive, administrative, or judicial action.
Article III entitled ‘Premises of the Court and the Commission’ further endows the premises of the CCJ and RJLSC with immunity from the unlawful entry by Government officials, in the performance of any official duties except with the consent and under the conditions agreed by the President, except in the case of an emergency.
The Articles make further provision for the immunities of the CCJ and RJLSC wherein it states as follows:
“Article VI
Archives of the Court and the Commission
The archives of the Court and the Commission, and in general all documents belonging to or held by the Court or the Commission, shall be inviolable wherever located.
Article V
Exemptions from Foreign Exchange Controls
1. Without being restricted by financial controls, regulations, or moratoria of any kind, the Court and the Commission shall be entitled for their official use only:
(a) to purchase from authorised dealers, hold and make use of negotiable currencies, operate foreign currency and external accounts, and purchase through authorised dealers, hold and make use of funds and securities.
(b) to freely transfer their funds, securities, and foreign currencies to or from the territory of any Contracting Party and to convert any currency held by them into any other currency.
Article VI
Exemption from Taxes, Customs Duties, and Import or Export Duties
1. The Court and the Commission shall be exempt from:
(a) any form of direct or indirect taxation, but the Court or the Commission shall not claim exemption from taxes which are, in fact, no more than charges for public utility services.
(b) customs duties and prohibitions and restrictions on imports in respect of articles imported or exported by the Court or the Commission for their official use, subject to the condition that articles imported under such exemption shall not be sold within the territory of the Contracting Party except under conditions agreed to with the Government.
(c) customs duties and other levies and prohibitions and restrictions in respect of the import, sale, and export of their publications.
Article VII
Facilities in Respect of Communications
1. The Court and the Commission shall, in relation to their official communications, enjoy in the territory of the Contracting Party, treatment no less favourable than that accorded by the Government to any other international organization.
2. The Court and the Commission shall be immune from censorship of their official correspondence and official communications.”
Article VIII of the said Protocols most importantly, extends immunity for Judges and Officers of the CCJ and Members of the RJLSC. It states that the Judges and officers of the CCJ and members of the RJLSC enjoy immunity from legal process regarding the words that are spoken by them in their official capacity and immunity from personal arrest or detention regarding acts that are done in the performance of their duties in an official capacity. Additionally, these personnel are exempt from immigration restrictions and requirements, and they also enjoy immunity from the search and exemption from search and/or seizure of their official documents, as well as their personal and official baggage.
The Judges and Officers of the CCJ and Members of the RJLSC therefore enjoy a wide array of immunities and privileges extended to them in carrying out their professional functions. Similar provisions are contained in Article IV, Article V, and Article IX of the ‘Agreement establishing the Seat of the Caribbean Court of Justice and the Offices of the Regional Judicial and Legal Services Commission between the Government of Trinidad and Tobago and the Caribbean Court of Justice and the Regional Judicial and Legal Services Commission’ contained in the Schedule to the Caribbean Court of Justice (Headquarters) Act, Chap. 6:05, which Agreement by section 4 of the said Act, has the force of law in Trinidad and Tobago.
It is essential to observe, however, that pursuant to Article X of the said Protocol to the CCJ Act, these privileges and immunities are solely granted in their official capacities and in the interest of the CCJ and the RJLSC, and are not for the personal benefit of the CCJ Judges, officials and Members of the RJLSC. The legislative framework also acknowledges that this immunity is not absolute, as Judges and Officers of the CCJ as well as the RJLSC Members are certainly not protected for actions conducted outside of their official capacity. Additionally, the President has the right to waive such immunities and privileges whenever the immunities and privileges would impede the course of justice. Article X also indicates that the Government can request that the Registrar investigate any cases whereby the Government is of the belief that an abuse has occurred in the enjoyment of any privilege or immunity conferred by the said Protocol. The legislation therefore provides a built-in ‘accountability’ safeguard to ensure that immunity is not misused and to maintain a balance between judicial independence and responsibility.
Dispute Resolution:
The query that follows is: How are disputes addressed when the individuals involved are shielded from judicial intervention?
Article XII of Protocol 1 of the CCJ Act, dictates that the President shall make appropriate provisions for the settlement of disputes which arise out of contracts and private law disputes whereby the CCJ or the RJLSC is a party, as well as disputes which involve any Judge or Officer of the CCJ or any difference or disputes between the Government and the CCJ or the RJLSC arising out of the interpretation of the said Protocol. In these instances, the disputes must be settled by negotiation or another agreed mode of settlement, and disputes that are not settled by negotiation would be referred for final decision to a Tribunal.
Caribbean Jurisprudence which tackled the issue of the immunity of the CCJ & RJLSC: –
CV2020-04288 Oscar Peters v the Regional Judicial and Legal Services Commission
This case concerned an application made by the Applicant for leave to apply for judicial review, seeking relief against the RJLSC stemming from disciplinary action initiated against him. The Court dealt with various issues, one of the issues was whether the Court had jurisdiction to entertain the Application against the RJLSC. In resolving this issue, the court considered the law as stated in the above-mentioned Caribbean cases; The Caribbean Examinations Council (supra), and Mark Taitt (supra). The Court in its conclusion stated as follows:
“The RJLSC enjoys immunity from suit, and this must include any person employed or appointed by the RJLSC in the course of its business to perform official business of the RJLSC and acting in the interest of the RJLSC at the time of any allegations of wrongdoing. It is not for the local Courts of any of its Member States to interfere with the independence that has been bestowed upon it. Should employees of the RJLSC or the CCJ be aggrieved, there is an alternative remedy available by way of the Caribbean Community Administrative Tribunal. It is imperative that employees and attorneys-at-law recognise the role of international organisations and not seek to involve and utilise local Courts as a grievance procedure.”
Conclusion:
Based on the legislative provisions and the case law, it is clear that the CCJ and the RJLSC have a substantial degree of immunity. The legislative framework surrounding immunity for the CCJ and RJLSC plays a pivotal role in securing the independence and effectiveness of these institutions. By providing a shield for Judges and personnel, these measures contribute to the region’s commitment to upholding the same rule of law and ensures a fair and impartial judicial system for the Caribbean Community. Balancing this immunity with accountability is key to maintaining public trust and upholding the principles of justice in the Caribbean region.
[1] *The Rule of Law in the Caribbean (ccj.org)
[2] The Regional Judicial and Legal Services Commission (RJLSC) – Caribbean Court of Justice (ccj.org)
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Guardians of Justice – Exploring the Immunities Safeguarding the Caribbean Court of Justice and the Regional Judicial and Legal Services Commission