By J K Roberts (Sound Public Policies Advocate)
A delegation of the Caribbean Court of Justice (CCJ) had a visit to Pure Grenada in May 2014. This visit has been the second in recent years organised as part of the drive for Constitutional Reform.
The delegation headed by Retired Judge, Madam Justice Desiree Bernard, engaged in public education and in sectoral discussions with interest groups including political parties, business bodies and the Trade Union Council, on the imperative of acceding to the Court (CCJ) which is arguably the main motive for the Reform. However, it is not certain whether or not the presentations by the delegation were ‘pure’, and would have convicted the CCJ. It is then critical that the information on the CCJ been disseminated be filtered before assimilation.
Grenadians must ensure that they are not judged gullible and be made a laughing stock, after what could be a ‘complex and confusing’ referendum for the Reform.
The Trinidad-based CCJ was established in July 2001 under CARICOM’s Revised Treaty of Chaguaramas, to operate in its Original Jurisdiction on trade matters and as the Final Appellate for civil, criminal and general constitutional matters. Whilst all of the fifteen CARICOM member-states are signatories to the Revised Treaty and using the CCJ in the compulsory Original Jurisdiction, only three of them (Barbados, Belize and Guyana) accept the CCJ for their Appellate Jurisdiction. The concerns and delays in adopting the CCJ in its ‘fullest jurisdiction’ throughout the CARICOM community have been lamented by CARICOM officials and some professional persons, especially as they consider the ambition for the CCJ and that each of the Member-states have already contributed financially to its existence.
Confidence and credibility form the major concern for acceding to the CCJ; this is not limited to the ordinary citizens but it is also the concern of some politicians. The concern surrounds the meaningful intention, organisational structure, financial security, professional competence and autonomous nature of the CCJ, and how susceptible are those features to extraneous influences especially by politicians.
The Delegation attempts to allay fears of political interference by making reference to the Regional Judicial and Legal Services Commission which is responsible to appoint and protect judges of the CCJ and to the Trust Fund which provides a secured source for the administration and functioning of the CCJ. It advances favourable indicators relating to the approachability, affordability and accountability of the CCJ; as compared with the English Judicial Committee of the Privy Council (JCPC). The JCPC has been debased as being remote and insensitive to the culture and circumstances of the Caribbean, even after it has being serving the Region for over half a century. The proponents for the CCJ need to declare that the JCPC has issued a communiqué on it abandoning the Region and/or for the Region to abandon its jurisdiction; as they often make reference to the reported remarks in September 2009 by British Jurist, Lord Nicholas Phillips, on the much time spent by the JCPC on cases from the Commonwealth (mostly in the Caribbean) and that “in an ideal world” those countries would have their own final courts.
Making the point that it is advantageous for the judges in a law-court to be acquainted with the local conditions in the performance of their role, could be very dangerous and damaging. A Court giving strong consideration to historical development, socio-economic factors, political construct and societal demands would compromise the ‘integrity and soundness’ of its judgements; emotions and sensations must not take precedence over objective applications of the rules of ‘moral conduct and standard laws’. It is then reasonable that the concerns about the kind of judgements to be delivered by the CCJ would be intensified and prolonged, and that the CCJ could be perceived as a deterrent for foreign investors. Persons may be judged less favourable than the State and in particular, public officers in Grenada would never be able to have redress on their constitutional pensions entitlement, under the CCJ with the argument that the country is in fiscal woes.
Most disturbingly, judgements may be delivered as a way to appease criminals and to promote corruption, at the expense of decent living.
Credit must be given to the Regional populations for its concerns and delays about the CCJ, at least on the readiness to dispense Justice in an impartial and unimpeded manner. The fact that it has just been in 2012 that a Judicial Code of Ethics for the professional conduct of the judges of the CCJ was brought into force, is confirmatory. Pertinent reports of the CCJ would reveal that tremendous significant arrangements and provisions are being developed towards its ‘integrity and soundness’ and thereby engendering ‘confidence and credibility’; most strikingly is the CCJ’s Seven-points Strategic Plan for 2013 – 2017. It would be then ‘foolish and suicidal’ for the people to take the chance to commit the issuance of Justice at the hands of the CCJ during its ‘premature and evolving’ stages. Never must the delivery of judgements on economic and trade matters be equated to, and be treated like, the delivery of judgements for social and human rights matters; noting that the first case is more about policies and legislations of the State but the latter is more about constitutional protection of individuals.
Political interference, conflict of interest, security of data-bases and the safety of witnesses and judges are just some of the real challenges to be addressed by the CCJ, especially based on the smallness of the Caribbean and with its weak economy, its partisan and insularity syndrome, its tight interconnection of various institutions and its track-records on the profile and performance of most leading persons/entities.
The regional governments have signed unto the Revised Treaty for the operations of the CCJ without the thorough understanding and endorsement of the people. The Heads of Government should be charged criminally for committing the people to the CCJ, contrary to the dignity and sovereignty of the people. The Heads would have known that it takes special parliamentary sanction and proclamation, constitutional reform and/or public referendum, as particular requirements would dictate, to effect the CCJ as the final court of appeal; yet they placed financial burden on the people in the establishment of the Trust Fund. Taking monies from the Consolidated Fund of the country to pay for a service which is not received must be judged criminal, unconstitutional, unconscionable and inconsiderate.
A sore issue is the continuous funding of the CCJ and whether or not taxpayers would be asked to give more for its upkeep; especially in this time of personal sacrifices in welfare needs, of national austerities and of high public debts. The Delegation stating that the Trust Fund with the investments is financially viable and that the people will not be asked to contribute further, generates more questions than answers.
The CCJ is promoted as an Itinerant Court travelling to sit in the country of the litigants. It seems incredible and unrealistic that the Government of the country will not be responsible, in any way whatsoever, to accommodate the sittings; even to rely on business favours. It is also difficult to accept that the operating costs of the CCJ will not escalate to require more financial input, with increases in its workload and institutional dimension and with its responses to modern management and technological innovations which would necessitate more resources and personnel and infrastructure and mechanisms.
Has the Caribbean Single Market and Economy (CSME), also set up by the Revised Treaty, already achieved a stable financial environment which is insulated from global economic trends and pitfalls, so as not to affect negatively the funds of the CCJ? Moreover, what is the guarantee that there will not be a lost in the investments of the Trust Fund, considering the experiences under the fiasco of British American Insurance Company (BAICO) and Colonial Life Insurance Company (CLICO) in 2009/2010?
Pointedly, isn’t it a recurrent repayment by the CARICOM countries for the monies which the Caribbean Development Bank (CDB) raised in 2005 on their behalf towards the one hundred million United States dollars used to establish the Trust Fund for the CCJ? Particularly, Grenada’s contribution to the Fund and the value of any repayment towards this contribution need to be told to its citizens.
Grenadians must know that the need to re-examine the Trust Fund was raised by a judge of the CCJ, Justice Rolston Nelson, in January 2014, and maybe after receiving ‘inside pressures’ he ‘technically explained’, as reported, that his comments may have contributed to conveying a “wrong impression” of the state of funds available for the operations of the Court. However, it became clear that sufficient serious thought did not go into the operations and costs of the CCJ; this should have involved ‘extensive and intensive’ studies on militating and risk factors against success, with suitable preparations.
Reference to a 2005 copyrighted publication of CARICOM, “The proposed establishment of the CCJ … augurs well for national efforts to restore the nations’ institutional prestige in its Courts generally, and specifically upholding the integrity of the sovereign State”.
In Grenada there is much evidence that national pride as well as national prestige have not been achieved in terms of Justice. Courts have to be cancelled on different occasions, due to non-payment of fees to the Eastern Caribbean Supreme Court and due to no proper house for sittings. The Security of Tenure and Professional Dignity of Magistrates have been undermined with the Pensions Disqualification Law. There have been the enactments of malicious and controversial legislations, even attracting regional and international attention. Abuses of constitutional provisions as well as disrespect for judicial judgements are prominent. It is therefore more ‘imperative and rewarding’ to undertake Legal Reform, not including the CCJ, than Constitutional Reform, to address the outstanding problems of irregularities and inefficiencies in the local Judiciary.
CARICOM, after forty years and counting, is still full of administrative and implementation problems; with growing cynicism of the people. The CCJ, CARICOM’s legal instrument, is regarded by many as a farce, especially when there is an apparent lack of the necessary statutory provisions to enforce its judgements. Access to Justice is futile when judicial procedures as well as laws enforcement are thwarted.
Settlement on the CCJ as the Final Court of Appeal cannot be reached unless there is ‘honest debate’ on all fronts. Would judgements of the JCPC be respected as precedents by the CCJ? Could the CCJ and the JCPC share jurisdiction, in terms of civil matters for the CCJ and criminal matters for the JCPC, or vice versa? Could the Constitution entertain ‘dual options’, CCJ or JCPC, as a fundamental right for litigants? Could there be easy revert to the JCPC if there is dissatisfaction with the CCJ? What’s about retaining the JCPC but as a fourth level of legal recourse, with having the CCJ as the third? How recognised would be the judgements of the CCJ within the international legal sphere?
A Final Court means that there is no further avenue of recourse on a lawsuit, but this does not mean that its judgement is right or moral. Since the fortunes of persons rest ultimately with this Court then it must be of merit. The CCJ must not be ‘superficial and symbolic’ but must be of ‘substance and significance’. Intention to impose the CCJ on the people must be ‘repealed’ and instead emphasis must be ‘enacted’ to put its House in order, which could be a reality by the next five years; to defend this charge is arrogance!