Is the Article 214 Referral Procedure necessary and suitable for CARICOM?
The referral procedure established by Article 214 of the RTC remains a conceptual enigma. Indeed, while theoretically useful, it has yet to affirm its practical necessity and suitability for CARICOM.
The Article 214 referral procedure should be utilized ‘…where a claim is filed in the domestic court of a CARICOM Member State, and an issue regarding the interpretation and application of the RTC arises…’ (Anderson, 2023). Its purpose is to ‘…foster a fruitful dialogue between the CCJ and national courts with a view to ensuring the uniform and effective application of CSME law…’ (Kaczorowska-Ireland and James, 2019). However, as per Hummingbird Rice Mills v Suriname and the Caribbean Community, Article 214 confers a “limited discretion” upon a national court or tribunal to decide whether to make a referral to the CCJ under the provision.
In practice, though, national courts and tribunals appear to enjoy a wide discretion as evidenced by the lack of referrals since the inauguration of the CCJ in 2005 as well as ‘[a]n analysis of the national judgments of the CARICOM national courts [indicating] that there have been several potential referral cases which have not been referred to the CCJ even though there were issues regarding the interpretation and application of the RTC’ (Asafari-Sewkaransing, 2023). The absence of a clear mechanism for “checks and balances” on the exercise of the “limited discretion” further complicates this issue. Then there is the matter of CARICOM’s intergovernmental structure.
One of the first things I learnt while taking the Law of International Organizations, taught by Dr. Ramona Biholar, was that CARICOM functions within an intergovernmental framework of operation. This effectively precludes original jurisdiction decisions of the CCJ from being directly effective or applicable within the domestic legal systems of CARICOM member states as well as from truly exercising supremacy over the domestic laws of CARICOM member states, including the Constitution.
More concerningly, CARICOM’s intergovernmental structure has led at least one national court to question the supremacy of CSME law when exercising its “limited discretion” not to utilize the referral procedure even though there were legitimate bases arguably necessitating a referral to the CCJ in the circumstances of that case (see Hadeed v The Attorney General of Trinidad and Tobago). Furthermore, there are other mechanisms contained within the RTC—including Articles 222, 211, 216 and 221 of the RTC—that are quite adequate to ensure the uniform and effective application of CSME law in practice.
The aforementioned realities make quite relevant the question of whether the Article 214 Referral Procedure is truly necessary and suitable for CARICOM in practice. This conversation is especially timely as the CCJ approaches its 20th anniversary.
