Letter to the Editor: 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).

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 (Hummingbird Rice Mills v Suriname and the Caribbean Community). However, in practice, national courts and tribunals appear to enjoy a wide discretion. Indeed, there have been no referrals since the CCJ’s inauguration in 2005 even in circumstances where “…there have been several potential referral cases…” (Asafari-Sewkaransing, 2023). The absence of a clear mechanism for “checks and balances” on the exercise of the “limited discretion” further complicates this issue and arguably calls into question the suitability of the Article 214 referral procedure for CARICOM.

Then there is the matter of CARICOM’s intergovernmental structure. This intergovernmental structure effectively precludes (OJ) decisions of the CCJ from being directly effective or applicable within the domestic legal systems of CARICOM member states. This intergovernmental structure also prevents CSME from truly exercising supremacy (both in theory and in practice) over the domestic laws of CARICOM member states, including the Constitution. In fact, it has even led one national court to openly question the supremacy of CSME law while declining to make a referral to the CCJ under Article 214 even though there were legitimate bases necessitating that referral (see Hadeed v The Attorney General of Trinidad and Tobago). CARICOM’s intergovernmental structure therefore invites justifiable questions about the suitability of the Article 214 referral procedure for CARICOM.  Furthermore, there are other mechanisms contained within the RTC—including Articles 222, 211, 216 and 221 of the RTC—that already exist to ensure the uniform and effective application of CSME law in practice. This factual reality invites legitimate questions about the necessity of the Article 214 referral procedure for CARICOM.