Tuesday , 16 January 2018
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Caribbean Court Of Justice – Counting Down – Rawlston Pompey


As far as regional integration is concerned, there has been a long and painful history. A conceptualized idea proposed by Jamaica, saw signatory States agreeing to the establishment of the “…Caribbean Court of Justice (CCJ).” Then by mutual agreement, each has declared to comply with the “…General undertaking” purposefully crafted and contained in the “…Revised Treaty of Chaguaramas” [Bahamas: July 5, 2001]. The rules provide for the establishment of the ‘CCJ’ to serve in two jurisprudential capacities, (i) “…an Original Jurisdiction; and (ii) …an Appellate Jurisdiction [February 14, 2001]. Signatory States have affirmed that “…The original jurisdiction of the Caribbean Court of Justice is essential for the successful operation of the Single Market and Economy (CSME).” The Court may have been placed at a disadvantage when the Treaty’s Preamble speaks only to its essentiality to the operational function of the Treaty.


Even as regional nations enjoy sovereignty, a “…New Dispensation” and a long established Treaty, the British continues to be blamed for the state of affairs currently exists within the region’s Judiciary. While these nations seemed united in “…Clamoring for Reparations” over the cruel and inhuman treatment of African Slaves, a united approach in building indigenous institutions appeared not to have been given priority.” Prior to the establishment of the “…Caribbean Court of Justice (CCJ),” it was a British conceptualized idea of a “…Federated West Indies.” This saw the establishment of two vital institutions, (i) “…a Federal Government and (ii) …Federal Supreme Court.” The initiative provided for internal governance, but was short-lived, due to territorial fights that ended in disintegration [1958-1962]. Even so, such governance was subjected to the supervision of British Governor, Patrick Buchan-Hepburn. Regional people only knew him as “…Lord Hailes” [1901-1974].


Research has shown that territorial and leadership feuds had plunged the “…West Indies Federation” down a slippery slope to dissolution. Therefore, it was never the notorious trafficking of humans across the treacherous Atlantic Ocean that had started the disintegration process. Intellectuals would have the region’s people believe that their “…indigence; …economic woes and jurisprudential difficulties and dissatisfaction” have resulted from their ancestral dreadful colonial past. Irrespective of “…slavery and plundering,” history has shown that it was a well “…psyched-up Jamaican population and a Referendum” that saw Jamaica opting to cop-out of the Federation. This came after four years of (i) “…bitter squabbles over premiership; (ii) …constant struggles for power and (ii) …disagreements over the seat of government” [Wikipedia].


Consequent upon Jamaica’s withdrawal, then Trinidad and Tobago Prime Minister, Dr. Eric Eustace Williams was forced into developing a new mathematical formula. Mathematically savvy and with diplomatic shrewdness, he cleverly crafted the formula “…1 from 10, leaves naught” [1962]. He had simply removed the “…figure 1, leaving ‘0’ standing alone. This had inevitably triggered the “…Dramatic Collapse” of the West Indies Federation” [1958-1962].  After four years, likened to an aircraft fallen from the skies, it disintegrated. This appeared to have affected further attempts at realizing the dreams of visionary leaders who will have seen the need for a unified ‘CARICOM,’ be it in “…Trade and economic issues; …free movement of people or a single Appellate Court.”


Having shared a “…Checkered History” of disintegration, “…Jamaica and Trinidad and Tobago” have developed an attitude of antagonism toward each other. While the two nations are signatories to the “…Revised Treaty of Chaguaramas,” they share one commonality. Ironically, the former had been the “…proponent for the establishment of the ‘CCJ,’ while the latter has provided its headquarters. Yet both appeared hell-bent in clinging to the “…Judicial Committee of the Privy Council (JCPC).” Whether for expediency or otherwise, while in parliamentary opposition, Andrew Holness (current Prime Minister) summarily removed attorney-at-law Senator Arthur Williams from his senatorial position. He had voted with the then “…governing Portia Simpson-Miller administration in seeking Appellate Membership in the CCJ.”Though the Senator came out “…litigiously smiling,” Her Ladyship, Justice Marva Mc Donald-Bishop chided him for “…witlessly preparing an advance letter of resignation at the behest of his leader.” The Judge writes “…The ill-conceived and nonsensical terms of letters” showed “…significant complicity” in authoring an undated letter of resignation [Gleaner: November 20, 2013: JMCA No. 22 of 2015].


As the ‘CCJ’ seeks to increase membership among the 14-member signatory States to its “…Appellate Jurisdiction,” it may have been the victim of “…Jurisdictional Sins” it has not committed. Currently, less than a handful of signatory States have embraced its “…Appellate Jurisdiction.” This jurisdiction,” specifically deals with “…Civil and Criminal Appeals” referred to it by embracing members. Currently, the appellate membership negligibly and disappointingly stands at four: (i) “…Barbados; (ii) …Belize; (iii) …Dominica and (iv) …Guyana.” Ironically, Jamaica, proponent of the establishment of the Court [April1970], is yet to “…ratify its status.” More ironic, is Trinidad and Tobago, home to the indigenous judicial institution, appears to be “…sitting on the fence.”


The nation’s move toward formalizing its membership, in the “…Appellate Jurisdiction” encourages citizen participation in itinerant consultations. These are not only intended to sensitize the citizenry of the Court’s judicial functions, but also to enlist citizen’s support and acceptance as the “…Court of Last Resort.” Invariably, when people play on the emotions of the gullible “…seeds of discord; …fear and doubt” were often sown. Many presentations have been made and various arguments have been advanced by several legal luminaries and constitutional experts. Interestingly, some have argued that the move suggests severing the inherited colonial jurisprudential ties with the “…Judicial Committee of the Privy Council (JCPC).”  This was expected to have been severed when the nation became signatory to the “…Revised Treaty of Chaguaramas.”


In its “…Original Jurisdiction,” it allows for accessibility for dispute-settlement, including disputes relating to restrictive movement or ill-treatment of nationals of signatory States.” Thus, in its arbitral role, the Court functions as a “…Tribunal,” interpreting and applying international law as contained in the Treaty.  The Rules also provide “…locus standi in private entities” [Article 222 (b)]. The seminal Shanique Myrie case speaks to this [CCJ: Appln. No: OA 002 of 2012]. Its “…Appellate Jurisdiction,” was established as the “…Final Appellate Court” for the region [April 16, 2005]. As it affects this nation, appeals from the Courts are referred to “…Her Majesty in Council.” The Constitution states, inter alia, “…An appeal shall lie from decisions from the Court of Appeal to Her Majesty in Council as of right in the following Cases; (a) …Final decisions in any civil proceedings; (b) …Final decisions in proceedings for dissolution or nullity of marriage; and (c) …Final decisions in any civil or criminal proceedings” [Section 122: CO.1981].


As opposed to “…Political Adventurism,” framers of the Constitution Order [1981: Section 47], anticipated that as the nation developed, there might be need to affect change within the triple-arms of government. For instance, there might be changes to the “…Legislative; …Executive and Judicial bodies.” The dynamic nature of modern and developing societies, often dictates such change. Anticipating these, the colonial powers carefully inserted that which is defined as “…constitutional change or alterations.” As it affects the appellate services of the “…Judicial Committee of the Privy Council (JCPC), Schedule 2 of the Constitution provides for “…amendment to the whole, or any part of the Constitution, including the Supreme Court Order.”  This may not be done without consultations and/or without the conduct of a Referendum.


Many legal luminaries, constitutional experts and members of the wider community, feel that the indigenous judicial institution will best serve the “…appellate needs of litigants across the region.” While the repetitive rhetorical expression has been used to suggest “…dispensing with colonialism,” the nation’s move toward the “…Appellate Jurisdiction of the CCJ” speaks more to “…National Sovereignty; …Self-determination; …Assertive and decisive leadership; …political will and courage.”  Further, it speaks purposefully to” … concretizing the integration movement; …strengthening cooperation, while developing functional approaches to matters of grave national and regional import.” Further, it speaks to the nation’s commitment and resolve in identifying with regional efforts in “…building institutions that seek to advance the causes of humanity, through “…development of its human resource and jurisprudential capacity.”


Experts have posited that the dynamism obtained in civil society, not only impact on human lives, but also their behavioral pattern and deeds. Invariably, issues of a sensitive, contentious or controversial nature often require judicial determinations. Describing “…Controversial Issues,” one expert posited that these are “…The type where people have different views of the right thing to do” [Marvin T. Brown: 2003]. He suggested that “…Our decisions are as good as the resources we use to make them; …By entering into dialogue with others, we give others and ourselves a chance for increasing the resources for making decisions” [Approach to Disagreements and Controversial Issues: 2003: 3 Edn]. It may have been for these reasons that the experts have posited that “…Ethical process usually helps to clarify and evaluate our responses to controversial issues.”


Invariably, these issues have resulted in human anger and wrath, thereby necessitated costly “…Visitations to the Judiciary.” Even so, litigants were frequently left in a state of dismay and despair. While cost prohibitions in litigation, in other appellate jurisdictions, shall be factored in these discussions, litigious parties appeared mortally afraid of judgments that gave the “…appearance of travesty.” This appeared to have impacted negatively on its membership drive by signatory States to the various protocols. Incidentally, in the “…Quest for Justice,” that which intellectuals know and the affluent possess, indigent people do not.” As much as sinners may not enter into the “…Kingdom of Heaven,” there are places where the poor will not sit. Further developing the point, in the Judiciary, “…Where Law Lords; …Judges and Magistrates sit, lawyers, litigants and appellants do not. Interestingly, “…Where angels fear to tread, fools rush in and where wisdom leads, people keep out.”


The ‘JCPC’s chiding of the “…Itinerant Appellate Court (ECSC),” not only appeared to have provoked doubts in the minds of litigants who had not found favor with its Judgments, but also affected confidence in the itinerant judicial institution. Thus, further besetting the ‘CCJ’ are judgments delivered in these jurisdictions that may have been capable of being described as “…Travesties of Justice.” This will have been evident from the regularity with which the “…Judicial Committee of the Privy Council (JCPC)” had overturned decisions that had the appearance of perverseness, evidenced by delays it had considered grossly inordinate. From this perspective, President Sir Dennis Byron will have been disheartened over these developments that are clearly outside the Court’s Appellate Jurisdiction. Though the Judgments had nothing to do with the “…Caribbean Court of Justice (CCJ),” it had also felt the effects of litigants opinions, as well as perceptions harbored by the public toward the “…ECSC.”


A “…Classic Case,” in which the London-based Privy Council appeared rather blunt and brutal was that of the “…Antigua Power Company Limited (APCL) and Antigua Public Utilities Authority (APUA)” [PCA: No.0063 of 2012]. Mindful of the “…Administration of Justice,” the JCPC Law Lords observed “…There was a delay of over twenty-two months between the argument in the Court of Appeal and the handing down of the Judgment; … The notion that serious delays in obtaining a Court determination amount to a denial of justice is too obvious and too well established to require any detailed explanation or authority.” Clearly dissatisfied, the Law Lords continued “…Unreasonable delay of this kind reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images the public can have of the way judges and lawyers perform their roles” [Para. 61].


In effecting change, this is often dependent upon the objective to be achieved. While change is inevitable, experience has taught that people of “…superior intellect” often sought to spur the “…dull and ignorant” to resist change. Leaders, however, have often sought to impress upon the minds of people that which will work for their best interest. As the nation moves toward ratifying its membership in the “…Appellate Jurisdiction of the Caribbean Court of Justice (CCJ),” voices for and against the two judicial institutions have been echoed across the region. Those who will have listened, may have found it consistent with the Latin phrase “…Vox Populi.” Translated into the language most citizens understands, it is saying that the “…Voice of the people is the voice of God.” Such voice has often echoed across nations, not only on issues of national import, but also those that may impact negatively on the quality of life.


In societies of “…free men and women and free institutions,” law abiding citizens had often found themselves pursuing justice in tribunals.” They rely heavily on the “…reasoning and judgments” of those who shall make informed decisions that could affect not only their perceptions of justice. Even as people are troubled by “…indigence and ignorance,” and often left in a state of “…confusion; ...anxiety, suspicion and indecision,” there have always been opportunities to be heard. And though the unsettling influences of “…mistrust; …fear and uncertainty,” continue to saturate the mind, there comes upon a nation a “…Defining Moment.” The moment has now come upon the nation and people of “…Antigua and Barbuda.” Through a future ‘Referendum,’ the people will not only be called upon to make an informed decision, but also to take a definitive position as to retention of the “…London-based Judicial Committee of the Privy Council (JCPC) or opting for the Appellate Jurisdiction in the ‘CCJ.”


To those advocating change and the practical visionary leaders, every new dispensation necessitates a paradigm shift. Applied to the Judiciary, there are many people who have advocated change from the “…London-based Judicial Committee of the Privy Council (JCPC) to the Appellate Jurisdiction of the indigenous Caribbean Court of Justice (CCJ).” Though lacking elective power and political will, it has been the ‘Vision’ of former Attorney General Justin L. Simon QC that the nation should opt for its appellate services. Today, with “…electoral power and political will,” it is the “…Desire” of Prime Minister Gaston Browne and his administration” in practicalizing the “…Vision.” Notwithstanding such vision and desire, it is the will of the people that shall determine the fate of these judicial institutions. This often help in allaying citizen’s fears, while engendering confidence, necessary in gaining public support, particularly, as the nation now seeks to gain “…Appellate Membership in the Caribbean Court of Justice (CCJ).”


As contained in the “…Treaty’s Article of General Undertaking,” constitutional expert Dr. Francis Alexis completed preliminary preparations of draft legislation for (a) “…Constitutional Amendment Bill; (b) …Constitutional Referendum Bill and (c) …Representation of the People (Amendment) Bill.” These requirements allow for the legalized processes and procedures. The guidelines speak specifically to (i) “…Holding a Referendum; (ii) …Altering the Constitution; (iii) …Amending the Supreme Court Order and (iv) …Amending the Representation of the People Act.” These were not only confirmed by the regional expert on Constitutional matters, but also entrenched requirements. Therefore, any alteration to the Constitution shall be subjected to “…Bills approved on a Referendum, held in accordance with such provisions as may be made in that behalf by Parliament, by not less than two-thirds of all votes validly cast on that referendum” [CO: Section 47 (5) (c)]. In recent parliamentary sittings, these Bills have been passed by both Houses of Parliament.


While electoral mandates are given to a “…governing administration in making executive policies and/or to consider legislative measures in providing legal effect,” the Constitution has entrenched “…Procedural Guidelines” to be followed by such administration. However, in most “…Constitutional Democracies,” authority to affect change lies with policy-makers, the power to affect such change resides with the people. As it affect constitutional change or alterations, it shall be understood that the “…power resides with those who may vote in a Referendum” [CO: Section 47 (5) (c)]. This is consistent with principles contained in the “…Universal Declaration of Human Rights.” It states “…The will of the people shall be the basis of the authority of government” [Article 21: 1948]. This speaks to a privilege accorded only to those elected by the people or constitutionally appointed, on premises to “…Serve the common and national good.”


Speaking to the “…Declaration of Intent” by the governing Gaston Browne administration, “…regional constitution expert, Dr. Alexis Francis” had provided in depth insights of the procedures that shall be constitutionally followed. He had made it clear that he was not in any way seeking to influence and/or dictate to the citizenry how they may exercise their prerogative. Though regional people may have been circumspect in their respective nations becoming members, this may not necessarily be sufficient reasons for avoiding its “…Appellate Jurisdiction.” Noting that the “…No Not Ready Committee,” in a peculiar mode, indicated visitations to “…poorer communities for the purpose of educating them on the CCJ” [Antigua Guardian: March 23, 2016].


There may be no doubt that the “…Caribbean Court of Justice (CCJ)” has been beset by rhetoric and sentiments that seek to hinder its advancement. There is also no doubt that that the environment in which it functions is not conducive in advancing membership growth and full acceptance as the region’s final Appellate institution. It would be naïve to think that both, “…Sir Dennis Byron President of the ‘CCJ’ and Chairman of the ‘National Coordinating Committee (NCC), Ambassador Dr. Clarence Henry,” are not faced with troubling issues- some pertinent and others extraneous. Among the President’s areas of responsibilities, is a requirement to persuade signatory States to the Treaty to accept its “…Appellate Jurisdiction.” Conversely, among the Chairman’s responsibilities, is persuading the electorate, and by extension, the citizenry in accepting the ‘CCJ’ as the nation’s Final Appellate Court.


It is no secret that after the Court’s establishment, “…disgruntled regional leaders” had subjected the institution and judicial officers to unjustified verbal attacks. Those trapped in a mindset of fear, have entertained “…perceptions of environmental interference,” while others continue to express fears in adjudicators who might be “…politically influenced.” In some respects, this may have been attributed to decisions delivered in “…other regional Courts” unconnected to the ‘CCJ.’  Thus, it shall not be surprising that opponents to membership in the “…Appellate Jurisdiction of the CCJ” will seek to make issues more contentious than the ignominious monetary transactions conducted by “…Judas Iscariot for thirty pieces of silver.” Scriptural teachings revealed that it had not only resulted in the “…Crucifixion and death of Jesus Chris” [Matthew 26: 15].


Though the troubles of the NCC Chairman may not have been significantly multiplied, as factual as the revelations may have been “…Seeds of Doubt” may have been unwittingly sown in the minds of people in jurisdictions served by the “…Itinerant Judicial Court (ECSC).” Tasked with sensitizing the citizens through public consultations, the NCC’s Chairman Dr. Clarence Henry shall contend with statements, however invidious or vexatious they may appear. Speaking to certain issues affecting the administration of justice, it appeared more “…Coincidental than Calculation” when former Culture Minister Elleston ‘Namba’ Adams and Chief Justice of the Eastern Caribbean Supreme Court (CCJ), Her Ladyship Dame Janice M. Pereira  chronicled several issues affecting the “…Judiciary and the administration of justice.” Speaking recently, “…Chief Justice of the Eastern Caribbean Supreme Court (ECSC) Her Ladyship Dame Janice M. Pereira” highlighted some sordid issues affecting the Judiciary. She intimated that there were “…Rising attempts at interference with the Court” [Simulcast: Law Year 2016/2017].


Though media houses often savor in sensationalizing and/or dramatizing comments emanating from, or attributed to the Judiciary, it may not necessarily be interpreted as directly challenging any nation’s procedural moves toward the “…Appellate Jurisdiction” in the Caribbean Court of Justice (CCJ).  Notwithstanding, the “…Startling Revelations,” it shall be understood that when the eminent Chief Justice made her comments, this shall have been regarded as consequential to her “…professional knowledge and concerns,” that irrespective of the status of “…interferers,” such attempts shall not only be professionally resisted, but also judicially rebuffed. Therefore, it shall have been accepted as a delivery made in her capacity as “…Chief Administrator of Justice” [OECS]. Speaking previously to the state of affairs as exist in the national Courts, representative of the “…No! Not Ready Committee,” Elleston ‘Namba’ Adams contended that the “…system is broken and needs fixing” [National Consultations: September 16, 2016].


While they may not have shared and/or compared notes, it was obvious that which the “…Chief Justice and Elleston ‘Namba’ Adams” had highlighted, some legal practitioners appeared not to have seen or feigned not to see. Even as doubts may reign in the hearts of regional people, the“…Caribbean Court of Justice (CCJ) Appellate Jurisdiction,” might properly be promoted as their nation’s readiness in discharging their obligations under “…Agreements contained in the Revised Treaty of Chaguaramas” [Bahamas: July 5, 2001].That which shall be understood are, (i) …Decisions delivered by the Magistracy and High Courts of Justice, are referred to the Eastern Caribbean Supreme Court (ECSC); (ii) …Judgments delivered by this Court are referred (currently) to the Judicial Committee of the Privy Council (JCPC). Should the appellate services of the ‘JCPC’ were to be terminated, consequent upon the constitutional amendments, “…Judgments from the ECSC” shall be referred to the “…Appellate Jurisdiction of the CCJ.”  Therefore, none may impute improper motive by her comments.


It is undeniable that public sensitization and education are critical factors in citizens’ “…awareness; …enlightenment; …understanding; … appreciation and acceptance of the Appellate Jurisdiction of the Caribbean Court of Justice (CCJ).” Many people have advanced arguments that may have been seen as farfetched, or have expressed fears over the equitable dispensation of justice. Such awareness shall be seen as signifying a “…consultative and participative-style of governance.” Therefore, except being emotive and sentimental, arguments may not necessarily be advanced under pretext of “…completeness of independence.” This was partially attained thirty-four years ago [November 1, 1981]. Instead, it shall reflect the “…Philosophical principles of governance” articulated by former United States President, Abraham Lincoln. In the historic speech delivered at the Gettysburg Cemetery, he assured Americans of (i) “…Government of; …for and by the people [Wikipedia: November 19, 1863].


There is no doubt that people are sometimes fooled by sentimentality and popular rhetoric. From this perspective, the ‘National Coordinating Committee (NCC),’ charged with seeking from the citizenry “…ideas; …opinions and suggestions,” shall endeavor to create an enabling environment that may help in charting the way forward to the “…Appellate Jurisdiction Caribbean Court of Justice (CCJ).” In so doing, the collective pooling of ideas will  not only help in developing commonalities of understanding, but also in enlisting overwhelming support, necessary in gaining membership in the judicial institution. Thus, in the consultative exercises, identifiable concerns will have been, (a) “…the integrity of the justice system; (b) …level of professional competencies; …capacity for reasoning; …open-mindedness and impartiality and (c) …assurances of fairness in adjudication; (d) …environmental impact (interference) and more importantly, timely and equitable dispensation of justice.” Consequently, if confidence is to be reposed in adjudicators and the Judiciary, these shall be dispelled from the minds of skeptics and critics. ****