The recent announcements by Saint Lucia’s Prime Minister Philip J. Pierre and the president of the Caribbean Court of Justice, Mr. Justice Adrian Saunders, have signalled our accession to the appellate jurisdiction of the CCJ. While it is laudable that we embark on the final leg of our legal decolonisation race, it is unfortunate that so many people remain uneducated and disenchanted by the decision, whether for political considerations, concerns about the process, lack of knowledge on the subject or inability to see the link between the CCJ and everyday life, many people seem disengaged from this historic moment.
It is therefore important even as the ink dries that some of the public commentary be addressed.
While this article is not a treatise on the CCJ, it is important to note that while the court has been in existence only since 2005, it was conceptualised as early as the 20th century. Therefore, the constant debate ad nauseum about whether it is the appropriate time for accession, while creating a narrative centered on the actual date of its establishment, is short-sighted. As early as 1970, a committee of AGs from the region met to consider establishing a final appellate regional court, through to the 1993, in ‘A Time for Action Report’ where there was a consensus that “integration was one of the primary reasons for establishing a court of high authority in the region, and the CARICOM movement, monetary union, movement of capital, labour, goods, functional co-operation among other fields must have the underpinning of Community Law and there must be the rule of law which is applied regionally and uniformly. There must therefore be a regional court which would interpret the Treaty and resolve disputes arising under it.’
Put simply, the Caribbean Integration project needed a court of its own making, similar to the European Union, to adjudicate, for example, a dispute between one member state who sought to illegally visa requirements for another citizen who is attempting to vacation in another member state among other infractions. Further, there was a paradigm shift in the thinking of CARICOM Heads of Government, who recognised that the Caribbean for too long were churning out jurists and law students with high levels of legal acumen, distinction, and skill, who were seen as “participants,” not owners of their legal system. At the inauguration of the CCJ, Dr. Kenny D. Anthony noted: “We had West Indian judges and AGs serving in countries of the region other than their own, and after African independence, they looked towards Caribbean lawyers to hold their highest legal and judicial offices in Kenya, Nigeria, and Zimbabwe. Caribbean judges have served in the International Court of Justice, in the International Tribunal on the Law of the Sea in Hamburg, in Yugoslav and Rwanda War Crimes Tribunal, Inter-American Juridical Tribunal and the International Criminal Court.”
He was also correct when he noted that “to question our capacity to complete what is after all the overdue reform of our regional judicial system is to do a disservice to ourselves.” The question therefore is what is within the psycho-social reality of the Caribbean which makes our people so cynical towards each other, and have such reluctance to trust people who look like them and have also demonstrate international excellence? Calypsonian Walleigh’s question, “why we hate what is ours so?” comes to mind.
Moreover, there was an increasing need to appendage an appellate court, as the final court of appeal to this jurisdiction which would replace the JCPC. It would serve the four signatories (Barbados, Belize, Dominica, and Guyana) and now, Saint Lucia based on a Constitutional Amendment. There was a growing recognition that the Privy Council became increasingly expensive, inefficient, and ineffective for Caribbean people. It was also increasingly clear that the JCPC as a product of colonialism was unfit for purpose, as it issued rulings and binding precedents which were not reflective of our nature, history, and circumstances and Caribbean judges had to apply it because it was “the law.” But, with the CCJ there is an understanding of the socio-economic, political realities, circumstances and history which inform our approach to precedent making.
Even more particular, the Privy Council was and is only accessible to the upper class of the Caribbean and those on death row, and there was a significant gap of individuals between this spectrum who were left without justice. It could explain therefore why, our country in 16 years has only had 17 cases heard by the JCPC together with other countries such as Barbados which prior to joining the CCJ had from 2000-2005, only 6 cases heard by the JCPC, in comparism to 20 cases heard by the CCJ. While some may argue that these numbers are relatively insignificant to begin with, it is important to note that appeals courts of the highest level are always low as most interactions with the court system, operates at the Magistrates and High Court level. This is not to excuse the JCPC’s ineffectiveness and lack of utility and make a case for its continuation. But would you call 17 cases, justice which is accessible, cost-efficient, and effective? By rejecting so many of our cases, there is a lack of development of Caribbean law, which the CCJ could and has provided leadership on.
On the contrary, the CCJ is more accessible, cost-effective, and also ensures that mechanisms are implemented where poor people are unable to access the court due to lack of finances, as seen in the case of Ross v Sinclair [2008] CCJ 4 AJ. Also, the court has ensured that, states also in Gibson v A-G of Barbados, provide an accused with money to cover the fees of a forensic odontologist to counter the state’s odontologist in determining whether or not the teeth marks on the victim’s body were his, this being the only evidence capable of incriminating him. If the money was not forthcoming, the trial would be permanently stayed, and the charge dismissed.
The Caribbean Court of Justice also exemplifies the separation of powers which requires, that the judiciary is a small grouping who are responsible for interpreting and applying the law. It is not supposed to be comprised of the same personnel who create the law or govern the day-to-day runnings of government. Recognising the Judiciary, requires such separation even more within smaller states such as ours, which are more amenable to familiarity, and congeniality, and concerns and actions of corruption by state officials, the CCJ ensured that they created an appointment and dismissal process which is far removed from the political fray.
The appointment of judges is therefore vested in the Regional Judicial Legal Service Commission which are made up of individuals from the OECS Bar, Organisation of the Commonwealth Bar Association, Judicial Service Commission, Public Service Commission, Faculties of Law among other agencies. Unlike systems such as the US & UK which are the ‘torch bearers of liberal democracies’ the CCJ’s model does not include the opinions and appointment by politicians seeking to enforce their ideological and programmatic agenda. One only has to look at the political and ideological warfare which occurs when a US Supreme Court is being nominated, and the predicting of their future rulings based on the politician who nominated them. Within the CCJ, these ordeals are absent, but it is important for our commission to be further transparent and open with the appointment process to increase the confidence of Caribbean people.
The President is also selected by this Commission and appointed by the votes of at least three quarters of the Heads of CARICOM States. It is important to note that politicians are only able to accept or decline the nomination and cannot handpick their choice for the Presidency. The process of removal is even more rigorous, wherein a Judge can only be removed for inability to perform the functions of their office, from illness or any other cause or misbehaviour. There is also an empanelling of an investigative tribunal which will determine whether the judge has misbehaved and should be removed. Therefore, claims of political influence in the process continues to be peddled as sophistries, masking for a deeper internal ideological battle, or political opportunism.
To also ensure that the CCJ was insulated from retraction of financial resources, the CCJ ensured, that there was an independent trust fund wherein states repaid the money in proportion to the relative size of their economies. It was also placed in the remit of a Board of Trustees who would invest the finances and also manage the finances of the court’s operating budget. This has been heralded as one of the most innovative methods of financing which preserves the independence of the judiciary and insulates the court from the possibility of political pressure being exerted upon it and being independent from the largesse and informal pressure of governments and from their administrative control.
This Board is also comprised of the SG of CARICOM, VC of the UWI, and members from Insurance Associations, Indigenous Banks, Chartered Accountants, Bar Associations, Industry and Commerce and Congress of Labour. The intention is to ensure that members of civil society, which are free from political influences are able to enhance the independence of the judiciary.
The independence of the judiciary must be based on an assessment of the judgement of the cases and ascertaining whether the law has been applied correctly, particularly when the state is a defendant in case. Now, this is not to suggest that, ruling against claimants must be done deliberately to show the independence of the judiciary, but where there is continuous ruling in favour of the government, irrespective of the merit of their cases, then questions of partiality must be asked. However, decisions such as Ventose v Chief Electoral Officer of Barbados, Shanique Myrie v Barbados, Boyce, and Joseph, Ali & Jagdeo v David and others, McEwan, and others v Guyana and many more point towards legal acumen, fairness, justice, but also show that the CCJ is unafraid of making determinations which are contrary to government decisions which run afoul of the law. Moreover, in cases such as the Maya Leaders Alliance, the CCJ has provided further assistance in the application and implementation of the judgement and is testament of a court within a post-colonial society understanding its developmental role.
In the end, there still seems to be continues scepticism among our people about the CCJ, as captured by Hon. Mark Brantley, Premier of Nevis when he noted “that this debate is not about individuals lack of confidence in our own judges. Instead, it is about the disconnect that exists between the judiciary and the public, and that they have jealously as they should, guard their independence. They actually see no relevance of this debate as ordinary people see this as one for politicians, academics, and intellectuals. This is further compounded by the toxicity and divisiveness of our two-party political system which have caused failed referenda. Moreover, the inefficiencies within the justice system causes apathy among people. It is not the quality of our judges which fail but the quality of the justice system. If we are to get to the CCJ we must fix the delivery of justice and then it will instil greater confidence in the public. Until then the referenda will fail.”
What Brantley did not mention was that it is equally the executive’s responsibility to ensure that the Judiciary is furnished with enough resources to ensure the swifter pace and access of justice. In the absence of this, the slowness of justice will continue to haunt our countries. There are therefore undertones of passing the buck to the Caribbean judiciary to clothe the manifestly ill-founded distrust for the CCJ.
But utilising this as a basis for not supporting the CCJ is illogical and shows a lack of understanding of the CCJ and the justice system. The CCJ is not an agency which is focused on equipping the judiciary with resources to quicken the delivery of justice, albeit it has. Therefore, the arguments raised against the CCJ may also be of the executive’s making and a by-product of the lack of investment by executives in the enhancement and delivery of justice. As Hon. Camillo Gonsalves has mentioned, in an op-ed, on this subject, I wonder whether after the referenda failed in Antigua, Grenada and St. Vincent and the Grenadines, whether the judiciary started to operate any quicker, since signing unto the CCJ would have destroyed that process.
It is therefore conflating of the issues, and reducing our countries to single issue and checklist type governments which are unable to ‘walk and chew gum.’ There must be the continuous improvement of justice while still acceding to the CCJ as one’s final court. The two projects cannot be seen as mutually exclusive. In our new approach to governance, this moment should have been utilised to showcase the interdisciplinary and interdependent nature of governance, where signing unto the CCJ enhances independence, decolonisation, judicial independence, health, economy, youth, climate, land rights and human rights, among all other areas.
‘This is not the right time’ is a phrase therefore steeped in political expediency, because one must ask when the right time is to deepen one’s independence project, while still attempting to solve the other existing issues? When is the appropriate time for one to not be a semicolony? The discussions should transcend the above and agitate for swifter access to justice by members of the society while lauding the initiative of acceding towards the CCJ.
The additional issue with this view however is that it is ignorant of the strident fact that issues will always be present within any justice system, and therefore if one is awaiting, the right moment for acceding, then the question is when will that time come? If ever? Who determines such a time? What is the barometer which is utilised to determine when the first issue is solved to move unto the second?
In the end, the CCJ provides significant benefits for our people, which range from completion of our independence project by ensuring that justice is not tone deaf, legal expertise, protection from political machinations through financial, institutional, and administrative mechanisms, enhancement of the regional integration project, cost-effectiveness, quick pace of delivery of justice, online media presence which allows for interaction with the court among other reasons.
The scepticism which is rooted in lack of knowledge must be addressed through widespread public education among our people and ordinary, concerted, and public advocacy from local and regional institutions to ground it within the hearts of people. If we are to accept the CCJ beyond the legal requirements, we must understand the nature, components, and benefits of the court. The removal of the Judicial Committee of the Privy Council as our final court of appeal and replacing it with the CCJ must therefore be lauded as it embraces the legal acumen and jurisprudence of our home-grown regional institutions. It shows that we are finally willing to embrace what has been crafted by our regional experts, as opposed to the continuation of what has been foisted upon us through the process of colonialism. This is not to suggest, because the JCPC is a product of colonialism, means that it does not have sound legal reasoning in their judgements. However, it is to proffer that, their judgements and modus operandi may be incompatible with the realities of the Caribbean. It should always be understood that laws and justice must be reflective of the society one lives in, if it is to gain any popular support and be effective. Justice must be blind, but not tone deaf to the realities of one’s country.
