Will Kenny take St Lucia screaming to CCJ?

Well, the courts—if not the people directly—have spoken! A reported typographical error in the Constitution of Saint Lucia has been determined and the government may now decide whether to let the Privy Council or the CCJ stand as the people’s court of last resort—without necessarily seeking a referendum. The ruling was handed down yesterday (Friday) morning by the appeal court, following presentations on the issue in March.

The matter came before the appeal court in Castries on Wednesday 27 March. At its center was a review of submissions as to whether there was an error in the Constitution that would allow for certain amendments to proceed with the CCJ or not. To put it plainly, the question to be settled was whether governments could proceed with becoming a part of the CCJ simply by obtaining a two-thirds House support or that the matter should be brought to a referendum where the people could decide for themselves.

As reported in the 30 March 2013 issue of the STAR this proposal originally came before Cabinet in 2010, under the last administration, following a document prepared by the attorney general’s chambers, then headed by Senator Nicholas Frederick.   It is to be noted that the present government conceded most of the findings, after which ministers were asked to consider whether Saint Lucia should accede to the Caribbean Court of Justice (as our final adjudicator in both civil and criminal matters.

The Cabinet was also required to consider the constitutional and administrative arrangements for doing so, following which a judicial review was anticipated.

Saint Lucia published the CCJ Act No. 3 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. However, to date there is no Commencement Order for the CCJ Act since the appellate jurisdiction has not been accepted. This is due to the fact that the Constitution of Saint Lucia recognizes the Privy Council as the final appellate court with respect to appeals. But it is this same Constitution, some argued, which contained an error in a particular section for which the government sought the court’s clarification.

The matter was presided over the by Hon. Dame Justice Pereira, and presentations were received by the Saint Lucia Bar Association with a minority and majority view and lawyers for the Government as well as the opposition. And whilst the matter was open to the public, it received very little such attention.

Back in March, Senior Counsel Anthony Astaphan had told the STAR that the government was seeking the guidance of the court on the proper interpretation and construction of the Constitution to decide whether or not the right to appeal to the Privy Council or to abolish it required a referendum or an agreement with the British Government.

Andy George, president of the Saint Lucia Bar Association, on the other hand, informed this reporter that the majority view leaned towards a referendum. “But If the court agrees with the AG and the minority members of the bar there would be no need for referendum.”  Both lawyers agreed the people of the region had not been properly educated about the functions of the CCJ.

Yesterday the Court of Appeal, by a majority, ruled in favour of the AG. That view was upheld by Dame Janice Pereira and Madam Louise E. Blenman. In a summary presentation Justice Pereira noted that “the Aattorney General of Saint Lucia pursuant to the Attorney General’s reference (Constitutional Questions) Act, referred to the Court of Appeal a series of questions concerning the interpretation of section 41 (7)(a) of the Saint Lucia Constitution Order 1978.”

The press summary document went on to outline the sections of the Constitution under review. Section (7) speaks to any agreement between Saint Lucia and the United Kingdom concerning appeals from any court having jurisdiction in Saint Lucia to her Majesty Council. Section (6)(b) states that “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, unless after it has been passed by the senate and the House or, in the case of a bill to which section 50 applies, after its rejection by the Senate for the second time, the bill has been approved on a referendum, held in accordance with such provisions as may be made in that behalf by Parliament, by a majority of the votes validly cast on that referendum.”

The Court pointed out that there were a number of questions before it including whether the reference in

section 41(7)(a) of the constitution should properly be to section 108 (which deals with appeals from the Court of appeal to her Majesty in Council) instead of section 107.

“If yes,” said the chief justice, “was the reference to 107 an error?”

Evidently it was!

A number of other questions were also answered in the affirmative with the Court agreeing that for purposes of alteration of the Constitution that an agreement on the CCJ must pre-date the presentation of the bill to alter the Constitution to give effect to the agreement.

The lone dissenting voice in the Court on Friday was that of Hon. Don Mitchell, Justice of Appeal. In his judgment Mitchell held that the reference in section 41(7)(a) of the constitution was properly a reference to section 107 and was not intended to be a reference to section 108.