Are we headed underground to the Caribbean Court of Justice?

CCJ President Dennis Byron and Prime Ministers Kenny Anthony and Ralph Gonsalves.

I’ve been wondering: how many regular Saint Lucians are familiar with the Attorney General’s Reference (Constitutional Questions) Act? I readily admit I’d never heard it mentioned, not even by my lawyer acquaintances, until I bumped into it recently, quite by accident.
It turned out the Act provides for the referral of important questions of interpretation of the Constitution, and of legislation enacted by Parliament. Now, right away, if you’re anything as suspicious a I, dear reader—and we know no one can possibly be!—you’ll be thinking: So, why has it never occurred to Doddy or any of his advertised several fellow best brains not yet exported to seek via the route of the Attorney General’s Reference Act a settlement of the following question: What was the intention of the framers of Section 41 of the Finance (Administration) Act? But then I guess most of us who care to know already know!
As ignorant as most of us convenient innocents might be when it comes to the AG’s Reference Act, however, it’s the reason why the Appeal Court recently considered certain aspects of the most recent election petition by the UWP (whatever happened to that?) in its continuing complicated contention with the polling results at Babonneau and Gros Islet. The appeal court determined in no time at all that the petition could properly be dealt with by the high court.
To hear one of our legal eagles tell it, one of the more wonderful things about the Attorney General’s Reference Act is that it “can spare taxpayers a lot of money by deciding upfront that a law was badly drafted, is ambiguous and so on.”  (Which may explain why it has so often been used by lawyer-politicians who like nothing better than to save taxpayers unnecessary expenditures!)
A certain bail issue of yesteryear, involving a now MP once charged with rape, was also settled by the AG’s Reference Act. You may recall (if reluctantly), dear reader, the day’s government had insisted on its right to deny the accused bail, based on its own carefully Revised Criminal Code of Saint Lucia, for which the government had heaped praise on Petrus Compton. The court quickly told poor Petrus and his fellow lawyer-ministers where to stick their Revised Criminal Code—then directed that the falsely accused be allowed bail. As things turned out, he never spent a minute behind bars!
I feel inclined to offer (yes, when it rains and all that) another matter involving the AG’s Reference (Constitutional Questions) Act. This one involves a high officer of the court, would you believe, that needed to know: “Is a judge who retires voluntarily before having reached the compulsory retirement age entitled to have added to his years of service the number of years specified in the conditions of salaries order for the purposes of determining his entitlement to a pension?”
Answer: “No, both under the Pensions Act and Regulations and under the Rates Act. The additional years’ service for which Section 12 of the Salaries Order provides are relevant to the computation of pension, but cannot be brought into account for the purposes of enabling a judge to qualify for a pension.”
And now my dear once-upon-a-time innocents, now that we are altogether familiar with the AGR Act, you’d think our lawyer-leaders would also be keen to use it in the best interests of you and me and our relatives up and down the country—better known as the common folk, we the people, or the man in the tree, er, I mean, the man in the street.
You’d think, for instance, that if at any time the smallest legal loophole should pop up and threaten the popular expression, or the popular vote, our lawyer-leaders would in a flash be stepping up with their copies of the AGR Act, hell-bent on blocking such loophole, perchance it swallowed up the people’s rights, right? Not so it seems, at any rate, according to what I understand is underway, albeit very hush-hush. (Gazette is just another word for hush-hush, in case anyone’s interested!)
It seems there is some doubt as to whether the leaders of Saint Vincent and the Grenadines and Saint Lucia can have a shot at dumping the Privy Council as our last resort court in favor of the Caribbean Court of Justice.
My understanding, and I don’t say it’s anywhere near perfect when it comes to matters of law, is that in Saint Vincent and the Grenadines an attempt at constitutional reform was not so long ago jammed, largely because the popular suspicion was that the nation’s leader was seeking a Taliban-like underground tunnel to the CCJ.
From what I hear, he had once opposed the court for fear of its vulnerability to, of all things, politicians.
Our own leader has consistently favored doing away with the Privy Council and from time to time has embarrassed some of us with his theory that we don’t see eye to eye on what the CCJ represents, for two reasons: either we were to one degree the spawn of colonials—or worse.
When some have admitted their distrust resides in the closeness of regional politicians and judges, our leader, hardly surprisingly, has turned again to his favorite cudgel: CCJ detractors were paranoiac self haters yet to shed their colonial chains. (Presumably, he had Brother Bob in
mind . . . mental slavery and all that other nice-sounding stuff). But he says it with such conviction, I tell you, it’s difficult shaking the feeling he must know something about chains and colonials that you know that I know he is best placed to know. (Okay, so I’m chain-smoking à la Bob Marley!)
But seriously:  I am persuaded that a move is afoot to have an appeal court in Saint Lucia determine whether our Constitution, as written, leaves room for “interested parties” (our prime minister himself and his AG and Ralph Gonsalves and his own AG) to do away with the need of a referendum before a decision can legally be made regarding the Privy Council and the CCJ.
It is only fair to add that even if the appeal court should allow them passage to their mutual goal via a loophole, when it comes to dumping the Privy Council without a referendum our Constitution would still demand a two-thirds
majority vote in the House. For now, at any rate.  Already barely explained new parliaments are springing up where once there was just one, replete with elected–selected
Speakers and other parliamentary trappings. What exactly are the hidden motivations for such initiatives in this time of economic chaos and wall-to-wall  deprivation? Might
someone be planning
to take it into his best-brains head, once the referendum matter has been done away with, also to dump the two-thirds majority constitutional requirement?
No way, José? Okay, but what if you should prove wrong? Why are we not better informed on matters such as I’ve barely touched on this time around? Why, when we have good reason to behave differently, do we continue to trust most those least deserving of unquestioning public trust?
A far-fetched question, perhaps: What if the CCJ should turn rogue? Who or what is there to stand up for the people? The connection between lawyers and jurists, in small jurisdictions such as ours especially, has not gone unnoticed. And yet . . .
How many judges in our region have been disrobed?                 How many on retirement make a handy living serving on commissions of inquiry? Have you noticed the way commissioners are handpicked? It’s as if it were a party thing. But don’t take just my partisan word for it.
Consider the following from the Report of a Seminar in Tobago in 1988, entitled The Independence of Judges and Lawyers in the Commonwealth Caribbean: “Judicial independence as a feature of the actual life of a community and its institutions depends substantially on the real and perceived ability of judges to resist all improper external pressures and influences and to give decisions which, irrespective of the parties involved, they honestly and genuinely believe on the facts presented and on the relevant law to be right. [My italics]
“Judges should therefore be mindful of their conduct while in office; and as a matter of principle should not do anything after they leave office which can either adversely affect the assessment of what they did in office or call into question their independence when in office. There should be guidelines as to what judges should or should not do professionally after they cease to hold office.”
Especially pointed:  “Judges and former  judges, when asked to preside over commissions of inquiry, should carefully consider the nature and terms of the inquiry before accepting appointment in order to avoid or minimize the risk of embarrassment to the individual and collective independence of the judiciary.”
I could name at least two judges who had never been anywhere near that careful!

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