The people must decide, and not their elected representatives,” so said the late Prime Minister of Dominica, Dame Eugenia Charles, referencing the Caribbean Court of Justice as our final court.
Years later, while some see the CCJ as representing our final break from colonialism, perhaps even more of us hold a different position, with much of the concerns about the CCJ centered on the idea of former polarizing political figures dispensing their brand of justice from our court benches. The people’s often expressed anxiety was not lost on senior counsel Anthony Astaphan and Andy George, Saint Lucia Bar Association president, on Wednesday, during a court hearing to review a submission regarding a possible error in the Constitution and whether certain amendments should be made to allow the government to proceed with the CCJ.
The proposal originally came before Cabinet in 2010, following a document prepared by his office when Nicholas Frederick was Saint Lucia’s attorney general.
The present government, it is to be noted, conceded most of the findings after which they were required to consider whether Saint Lucia should accede to the Caribbean Court of Justice (CCJ) to be the final appeal in civil and criminal matters. The Cabinet was also required to consider the constitutional and administrative arrangement for doing so, following which a judicial review was expected to be sought.
In 1989 it was agreed in principle at a Heads of Government conference in Grenada that the CCJ would be established to replace the Privy Council. The agreement was then signed by member states of CARICOM in 2001, with the exception of the Bahamas, Haiti and Montserrat. The CCJ would hear appeals from courts within the jurisdictions of parties to the Agreement Establishing the CCJ.
The signatories subsequently ratified the agreement, some of them with reservations about the appellate jurisdiction of the CCJ. To date, the CCJ is the final appellate court only for Guyana, Barbados and Suriname.
Saint Lucia published the CCJ ACT No. 34 of 2003 in the Gazette dated 28th December 2003. The Act provides that it will come into force on a day appointed by the Minister by an Order published in the Gazette. Section 1 (2) empowers the Minister to bring into force different parts of the Act on different dates. To date there is no Commencement Order for the CCJ Act.
One of the snags is that the appellate jurisdiction has not been accepted; the Constitution of Saint Lucia recognizes the Privy Council as the final appellate court with respect to appeals.
The former AG’s office noted that “the right of appeal in Saint Lucia to the Privy Council is entrenched in Section 108 of the Saint Lucia Constitution Order 1978. Accordingly, instituting the CCJ as Saint Lucia’ final Court of Appeal would require amendments to the Constitution in accordance with the applicable procedure.”
Some of the special procedures pointed out included a “referendum” or “special majority in the House of Parliament.”
The Constitution of Saint Lucia, some legal minds argue, contain some “constitutional challenges” “error” or “drafting lapses.”
Section 106-108 of the Constitution which establishes the Judicial Committee of the Privy Council (Her Majesty’s Council) as the final Court of Appeal for Saint Lucia is the section under question.
An amendment to the Constitution, the AG’s office surmises, to allow for accession by the CCJ, would require amendments to those provisions, particularly Section 108.
However Sections 106-108 are specifically protected under Schedule 1 part 1 of the Constitution in as much as section 41 of the Saint Lucia Constitution Order prescribes the special procedures for amendment.
It says: “An amendment made by the Senate to a bill to which subsection (2) applies shall not be regarded as being agreed to by the House for the purposes of section 50 unless such agreement is signified by resolution supported by the votes of not less than three quarters of all the members of the house,” section 41 (4) reads.
It has also been noted that the difficulty in 106, 107 and 108 is that an interval of 90 days is required between the First and Second readings and that where there is an amendment by the Senate requiring a three-quarters support of the House and three- quarters support on its final reading at the House. Finally, that only after two successive rejections by the Senate can the Bill be approved by referendum.
The Stephenson King administration had also indicated that where regional debates on a referendum are concerned, Saunders J, in an opinion on Saint Lucia and the CCJ, opined as a foregone conclusion that a referendum will, alas, be required. It was also submitted that Saint Lucia may accede to the CCJ without the prospect based on Section 107.
A review of Section 107, however, reveals that this provision is restricted to appeals to the High Court and does not speak at all to appeals to her Majesty in Council. These appeals seem to be preserved in Section 108 of the Constitution. This anomaly had forced Justice Adrian Saunders to opine in a paper that “Saint Lucia and the CCJ” was a typographical error and that the correct reference at 41 (7) should have been section 108 and not 107.
If Sanders is correct the need for a referendum would be obviated if Saint Lucia pursues an agreement with the UK, the effect of which would be to relieve the JCPC of jurisdiction, allowing Saint Lucia to freely select the CCJ.
Based on the above the present government has sought clarification from the courts and on Wednesday March 27, in a matter presided over the by Justice Janice Pereira, presentations were received.
Arguing the matter before the courts on Wednesday was Mr. Hilford Deterville representing the minority court and QC Anthony Astaphan on behalf of the Government.
“I am here to assist the court in dealing with the reference of the Attorney General,” Deterville said Wednesday, before giving an historical perspective of the Constitution. This he said, started with the Civil Code of 1879, which gave birth to a Constitution one hundred years later after Saint Lucia became independent.
“The code defined how you were to look at things,” he said. Moreover, that Section 10 declared how matters were to be dealt with where a law is doubtful or ambiguous. “What else are we here for but doubt?” asked Deterville. He went on to argue that the rules applying to the court of appeal and the CCJ are different.
Petra Nelson making submissions on behalf of the Opposition started by saying “the main issue was to give an opinion on whether or not there is an error in our Constitution and the submissions show that . . . But we are submitting that for political, economic and social expediency one cannot, without proper reasoning, state that there is an error in the Constitution where in the reading of it there seems to be no anomaly.”
At one point during her presentation Justice Pereira raised objections to alleged suggestions that the CCJ may offer bias, asking whether it could be suggested that since she Pereira was an ex-officio member she would have a particular view or bias towards the CCJ one way or the other.
Nelson nevertheless went on to offer a reminder: “Dominica’s Eugenia Charles specifically discussed the issue of a referendum.” she stated.
She observed that the Constitution was written to last but has to be dynamic in an ever-changing world. “Correcting a so called error,” she said “may even preclude the rights of a people to vote in a democratic process.”
Andie George gave an overview of his association’s involvement. He recalled that after a paper prepared by Dr. Barnet had been circulated, his organization had a majority and minority view. The paper calls for approval by the electorate. On Wednesday Sadia Cenac attempted to put forward the arguments on behalf of the Bar Association.
Finally all the submissions, which ended just before 4 pm, Justice Pereira announced that judgment would be reserved.
Speaking to the STAR afterwards, Anthony Astaphan summarized the government’s position: “Well, the essential point really is whether or not the provisions of Sections 41-7 ought to have referred to Section 107, which is the provision dealing with appeals to the Privy Council and 108 which deals with the high court.”
Additionaly: “The interesting thing about all of this is that the government of Stephenson King in 2010 felt that there was an error in the Constitution and had a Cabinet Conclusion seeking guidance of the court under the AG. After the elections Dr. Anthony’s Cabinet had a similar conclusion, seeking the guidance from the court on the proper interpretation and construction of the Constitution to decide whether or not the right to appeal to the Privy Council to abolish it requires a referendum or requires an agreement with the British Government.”
Asked about the anxiety and lack of information surrounding the CCJ among Caribbean people, Astaphan said: “We, you, me, the media, lawyers, we have an obligation to educate the people about the CCJ, what it means, the legislative framework, how judges are appointed, how the CCJ is financed. We have not been doing a good job educating the people of these countries and perhaps the worst political problem is that a lot of politicians, particularly those in opposition, are consistently making the CCJ a political football. There is, but there ought to be no anxiety surrounding the CCJ. It has to be seen as part of our development and liberation, as our final court of appeal.”
Andie George also spoke with the STAR on Wednesday, acknowledging, too, that not enough had been done to educate the people of the region about the CCJ. He said: “Some lawyers had a different intellectual opinion as opposed to the majority and felt that there was an error in Section107. The majority felt that given literal meaning that it created no absurdity when read in conjunction with section 41. Technically we argued based on decided cases and what the majority put forward there was some meaning to Section 41 (7) when read in conjunction to section 107 and there was no need for judicial intervention.”
According to George the majority’s argument supports a referendum. “If the court agrees with the AG and the minority members of the bar there would be no need for referendum.”
On the information being circulated about the CCJ, George says there is a general lack of understanding. “In my opinion when we acceded to having the CCJ as our final appellate court there was not sufficient public education in the region generally. We hear about the CCJ, we generally know what the CCJ would be as the final appellate court, but I don’t think people appreciate and understand the intricacies involved in its establishment.”
He recalled speaking with the prime minister on the matter and called for more education to build the confidence of people. “If you don’t understand it, you will not support it,” he said.
George lamented that Wednesday’s matter did not involve sufficient members of the public. He said his association attempted to fill the gap.