As one of doubtless countless others who in the estimation of Dominica’s higher intelligence Anthony Astaphan SC remain in dire need of such education as would render us appreciative of the arcane merits of the Caribbean Court of Justice, let me say Toni Nicholas’ rush report in last weekend’s STAR left me somewhat kerfuffled.
With all his years of journalistic experience, particularly with certain lawyers and their satellites, maybe Toni had chosen to play it safe and regurgitate, word for obfuscating word, what he had received from hardly disinterested legal killibwis about “the matter of the Attorney General’s Reference (Constitutional Questions) Act Cap 17.18 of the revised Laws of Saint Lucia” blah, blah, blah—heard by an appeal court comprising Chief Justice Janice Pereira, Justice of Appeal Louise Blenman and Acting Justice of Appeal Don Mitchell.
Floor participants in the almost secret exercise (blame our notoriously fragile press!): the earlier mentioned ubiquitous Astaphan, Deale Lee, Hilford Deterville QC, Renee St Rose, Diana Thomas (the remarkably talented last two of the prestigious House of Foster) and Shellone Surage, who probably made history by appearing only for “some members” of Saint Lucia’s Bar Association that obviously sips not from the same chalice!
Also on hand: Edith Jeffrey-Nelson, Esther Greene-Ernest and Lydia Faisal for the office of the Leader of the Opposition, and the record-setting Andie George, Barbara Vargas, Ermin Moise and Sardina Cenac-Prospere “for the majority” of the Bar Association of Saint Lucia.
As the Chief Justice Pereira usefully recalled, the parliament of Saint Lucia enacted the Attorney General’s Reference (Constitutional Questions) Act in 2005, enabling the court, “on a reference made by the AG with the approval of Cabinet,” to interpret among other things “the Saint Lucia Constitution Order 1978 where a question arises in respect of the interpretation of any provision of the Constitution and to certify to the AG its opinion thereon.”
No surprise that any such question is “deemed to be an important question.” The AG had referred, pursuant to the act, the following (important) questions for the Court’s consideration: 1) Whether the reference in section 41(7)(a) of the Constitution should properly be to section 108 instead of 107? If yes, was the reference to 107 an error? 2) If the answer to question 1) is yes, whether the error may be “judicially corrected merely upon the determination of this application by the attorney general, or by an application by the attorney general to the judge of the high court or, must the error be corrected by an alteration to the Constitution?”
Additionally: “If the answer to the first question is yes, whether the agreement establishing the Caribbean Court of Appeal of Justice signed on 14 February 2001 and ratified by Saint Lucia on 5 July 2002, and enacted into the laws of Saint Lucia on 5 July 2002, and enacted into the laws of Saint Lucia as the Caribbean Court of Justice (agreement) Act, Number 34 of 2003 constitutes an international agreement to which Saint Lucia is a party for the purpose of the provisions of section 41(7)(b).”
Let us spare ourselves the discombobulating effects from wading knee high waffle that is of interest mainly to lawyers on occasion. In short, the court was being asked to determine whether or not the Constitution actually permitted the government to decide—without a referendum—to replace the Privy Council as the region’s court of last resort with the relative newborn Caribbean Court of Justice.
Here now, a little background to our long-established arrangements with the Privy Council, courtesy the thoughtful Chief Justice Pereira: “Appeals to Her Majesty in Council are provided for by virtue of the West Indies Associated States (Appeals to Privy Council Order 1967). This order came into force simultaneously with the Supreme Court Order on 27 February 1967, and was made pursuant to the Judicial Committee Act 1844 (UK) . . .
“A bill to alter any of the provisions of the Constitution or the Supreme Court Order shall not be submitted to the governor-general for his assent . . . if the bill provides for the alteration of this Section, Schedule 1 to this Constitution or any of the provisions of this Constitution or the Supreme Court Order specified in that Schedule and the House . . . by a majority of the votes validly cast on that referendum.”
The Chief Justice went on: “To contrast the amending of Section 36 of the 1967 pre-independence Constitution of Saint Lucia, with the amending version (section 41) of its 1978 independence Constitution. Under the 1978 Constitution the special majority for amendment of Schedule 1 has been increased to a three-fourths majority from two-thirds; the referendum to alter Schedule 1 has also been increased to a three-fourths majority; a further provision has been added for altering any other provision of the Constitution save for Schedule 1; whereas there is an express reference to the Supreme Court Order, there is no reference whatsoever to the appeals to the Privy Council Order, as compared to its express reference in the 1967 pre-independence.”
Stay with me, dear reader, I promise we are getting nearer to the meat of the matter at stake: “The provisions of the Supreme Court Order entrenched in section 41(6)(b) do not deal with appeals to the Privy Council from any court in Saint Lucia. It is therefore inconceivable as to what agreement could possibly be contemplated between Saint Lucia and the United Kingdom regarding appeals from the High Court to the Court of Appeal (which is what section 107 concerns) that would somehow concern appeals from any court in Saint Lucia to the Privy Council.
“The reference to section107 in 41(7)(a), in my view makes, no sense whatsoever and leads to an absurdity in construing this provision. Section 107 bears no rational connection to appeals to the Privy Council and, similarly, an alteration of Section 107, to give effect to an agreement between Saint Lucia and the U concerning appeals to the Privy Council from a court in Saint Lucia is simply, in my view, nonsensical as section 107 simply does not deal with such appeals.”
Moreover: “An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases—decisions in any civil proceedings where in the opinion of the Court of Appeal the question involved in the appeal is one that by reason of its great general or public importance or otherwise ought to be submitted to her Majesty in Council; and such other cases may be prescribed by Parliament. An appeal shall lie to Her Majesty in Council with the special leave of Her Majesty from any decision of the Court of Appeal in any civil or criminal matter. References in this section to decisions of the Court of Appeal shall be construed as references to decisions of the Court of Appeal in exercise of the jurisdiction conferred
by this Constitution or any other law . . .
“I am fully satisfied that the reference to Section 107 in Section 41(7)(a) is an error of commission . . . which in its context defeats the intention of the Act. The draftsman slipped up. In the circumstance it is the duty of the court to correct what is clearly an obvious typographical error or slip by the draftsman. Section 107 in section 41(7)(a) therefore ought to be read as section 108. This correction by way interpretation squarely meets the three-fold test set out in Inco Europe Ltd. I repeat them for completeness:
“The intended purpose of the statute or provision in question; that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and the substance of the provision Parliament would have used had the error in the Bill been noticed.
“This does not involve the imposition of any requirement for a referendum where none currently exists and the removal of such a requirement where such existed, as had been argued by the Bar Association. Neither does it do violence to section 106 of the Constitution as the reference in that section to Her Majesty in Council is clearly in recognition of the avenue of appeal to Her Majesty in Council in Section 108. It produces no odd result whatsoever, but merely gives effect to precisely what is intended by the exception provision within the context and framework of the Constitution.
“There is general consensus that the agreement establishing the CCJ to which Saint Lucia is a party is such an international agreement as contemplated under subsection 41(7)(b) of the Constitution and thus falls within the ambit of this provision. Counsel for the Leader of the Opposition does not agree. The Leader of the Opposition posits that the provisions of the agreement relating to the appellate jurisdiction of the Court will be void if given effect without compliance with the requirements of Section 41 of the Constitution. This argument fails to appreciate, in my view, that Section 41 is the very section which creates the exception provision (subsection 7) to the deeply entrenched provisions to achieve the purposes set out in section 41(7)(b).
“The provision clearly contemplates and provides
the freedom to Saint Lucia to establish a court in common with other states or countries—in essence, a common court between participating states in much the same way as the currently established Eastern Caribbean Supreme Court. Such an agreement may well impact the Eastern Caribbean Supreme Court and thus, for this purpose only, falling within the exception provision in section 41 of the Constitution.
“Section 41(7)(b) being broad in scope would clearly encompass an agreement such as the agreement establishing the CCJ. Section 41(7)(b) is broad enough to allow Saint Lucia to enter into such an agreement with other states or countries alone. In short, Saint Lucia does not require the concurrence of other states or countries for entering into an agreement with another state, states or countries, for the purpose intended by this provision. Similarly, it follows that such an agreement must necessarily pre-date the presentation of the bill to alter the Constitution, the purpose of which is to give effect to the agreement.”
Phew! All of that to prove the Constitution had always intended (though it never actually so stated) to give politicians, in this instance, at any rate, dominion over the people, including the authority to decide for them—whether or not they like it—even in matters as sensitive as choice of the Privy Council and the CCJ as our court of last resort.
Last week the government barely got the court of appeal’s green light. Which is not to say bal fini. It must’ve taken real courage in his circumstances for Acting Justice of Appeal Don Mitchell to say, “with some humility and temerity,” he disagreed with the opinion of his sister judges the Chief Justice and Justice Blenman, as well as the attorney general, Lloyd Bennett, Anthony Astaphan and Hilford Deterville and found that “the reference in section 41(7)(a) of the Constitution is properly a reference to section 107 and was not intended to be a reference to section 108.”
Hopefully there exists among the OECS concerned citizens who agree with Justice Mitchell and care enough about justice (though I very much doubt it!) to demand a resolution less wish-washy than a two-out-of-three decision.
But even assuming arguendo the decision by the chief justice and her judicial sister is the right one, that there is merit in appropriately retooling the typographical error to say there really is no need to have a referendum on the burning CCJ-Privy Council issue, does that mean the concerned governments now have no other choice but to deny their people the satisfaction of deciding this matter for themselves? (I am trying not to recall the typically Astaphan recommendation not so long ago that we the people are in dire need of an education that would effectively render us echoes of every note he sings for his supper!)
Soon the spotlight will shine on the issue of Constitutional reform. The government alone knows why it chose ahead of that time to take on the issue of the CCJ. But, as I say, that’s for another show!
As I’ve elsewhere noted, there is little that may be said against the idea of a CCJ. The problem has never been the court itself. Rather, what greatly disturbs we the people resides in the undeniable, I dare to say indisputable, fact that what for far too long has been allowed in our region to masquerade as justice is nothing short of nightmarish. A horrifying aberration.
It is an irreducible truth that the gems in our Constitution that we treasure most, its guarantees of free speech, the right to be judged by our peers, speedy trials, equality before the law, freedom of association and so on . . . all of them were handed us, without our shedding a drop of blood in payment, by the initial writers of our Constitution, usually referred to pejoratively as “the colonials” and colloquially as de white man!
It is also undeniable, the attempts by some of our so-called brothers and sisters to return us to what Naipaul often refers to as “the bush.” Yes, never mind their seductive bleatings, some would in a heartbeat superimpose over our Constitution the law of the jungle—and drag us back in chains to the plantation, self-convinced as they are that the descendant sons and daughters of slaves can no more think for themselves than can a slave owner’s progeny believe in the idea that we all are made of the same stuff—therefore created equal!
Staining our statute books, like blots of red ink on otherwise pristine pages, are unjust laws that deny us the freedom to wear what we want even in our own backyards, or to speak truth near particular buildings without the risk of being shot to kingdom come by unaccountable trigger-happy protectors of the Master’s Voice—however amoral.
Consider the enslaving Public Order Act that back in 1979 a campaigning party had
sworn to repeal if elected, then reneged. Look up the so-called David England Law that in Parliament was described
even by its presenter as “a draconian piece of legislation.” Recall the determined
official attempts at implementing the no-bail law, Section 361 and so on? Meanwhile perhaps you who “hunger and thirst after righteousness,” might spare a thought for the untried scores of poor citizens in the prime of their lives as behind locked bars they wallow in their hopelessness, systemically being killed—by time!
Again I hear the echoing words of Frederick Douglas, the legendary former slave, orator, writer and abolitionist: “Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”
I tell you, people, the philistines are upon us!