Statement of the OECS Bar Association in response to recent media statements of Cabral Douglas attacking the integrity of the Caribbean Court of Justice (CCJ).
The OECS Bar Association strongly condemns and views with deep concern the recent irresponsible public attacks on the integrity of the CCJ by Dominican lawyer Cabral Douglas who himself was an applicant in a matter dismissed by the very court (the CCJ) on 20 February, 2017.
Our investigations reveal that on 24 August 2016, Mr Douglas applied to the Original Jurisdiction of the CCJ seeking special leave to commence proceedings against the State of Dominica. His action arose from the 23 February 2014 denial of entry, detention and deportation of Jamaican recording artist and entertainer, Mr Leroy Russell (also known as “Tommy Lee Sparta”), along with three other Jamaican support staff. The contingent of four had gone to Dominica for an international concert organised by Mr Douglas in observance of the annual carnival in Portsmouth. The denial of entry ultimately caused the cancellation of the concert.
Ruling against Mr Douglas
The Original Jurisdiction of the CCJ is the sole body responsible for interpreting and applying the Revised Treaty of Chaguaramas (RTC) which stipulates, among other things, the rights of individuals under the Caribbean Single Market and Economy (CSME). An individual alleging breach of CSME rights by the State — as Mr Douglas was alleging — requires special leave (or permission) of the court before he can bring an action.
In its 20 February, 2017 Judgment, the CCJ concluded that Mr Douglas had failed to satisfy the requirement under Article 222 (a) and (b) of the RTC to obtain special leave to commence proceedings against the State of Dominica. Detailed reasons for the decision were given in the court’s 41 paragraph, 18-page Judgment. Displeased, Mr Douglas has embarked on a media rampage describing the decision with a range of uncomplimentary terms including “ridiculous”, “most absurd”, and “laughable at best”.
Attacking the Court
Of even greater concern, is the unleashing by Mr Douglas of a most unwarranted and unjustifiable attack on the integrity of the court, the credibility of its Judges, and the quality of its decision-making. Very unfortunately, he has linked the decision against him as proof that the court is “in the pockets of politicians” and “corrupt”.
Apart from the content of the CCJ Judgment, Mr Douglas relies, as further basis of his attacks, on the attendance of Sir Denis Byron, President of the CCJ, at the Annual Heads of Government Conference in Guyana around the same time the court’s decision against him was being handed down.
Most regrettably, Mr Douglas proceeds to imply that the matter was discussed among the heads; that Sir Denis met privately during the conference with Dominica’s Prime Minister Roosevelt Skerritt about the case; and that somehow the heads improperly influenced the CCJ’s decision against him.
Mr Douglas’ attacks on the court have been widely reported in the regional media. Contrary to the impression being conveyed in media reports, Sir Denis was not the only member of the CCJ who heard and decided the Douglas case. Four other distinguished Judges constituted the panel including Justices Adrian Saunders, Jacob Wit, David Hayton and Winston Anderson.
The CCJ comprises several judges from both inside and outside the region. In fact, until his elevation to the CCJ in 2005 Justice Hayton, was considered as the leading authority in the United Kingdom and Europe on the Law of Trusts.
No existence in isolation
It is important to note that no court in the world exists in isolation from the public and the other organs of the state. Heads of the international tribunals report at least annually to the Security Council of the United Nations which comprises 15 member States. In its Original Jurisdiction, the CCJ is an international court. The President of the CCJ is expected to attend meetings of Heads of Government from time to time to discuss matters touching and concerning the proper administration of the regional court, just like the Chief Justice of the Eastern Caribbean Supreme Court (ECSC) has historically done and continues to do. Sir Denis’ appearance at the Guyana Conference ought not, therefore, to be considered unusual and a cause for concern. Pending court cases are never the subject of discussion at such meetings and no evidence has been produced – apart from the wild and baseless allegation of Mr Douglas which has been roundly denied by the CCJ – to suggest that the Dominica case was discussed at the Guyana conference.
Moreover, Mr Douglas seems to confuse an action against a State as being equivalent to an action against a Prime Minister in his personal or professional capacity.
Ranking among independent courts in the world
The OECS Bar notes that the CCJ ranks among the more institutionally independent courts in the Commonwealth and wider world: its judges are appointed by an independent Regional Judicial & Legal Services Commission (RJLSC); its monies are managed by an independent Trust Fund; its hearings are open, transparent and can be viewed the world over in ‘real time’; and its Judgments are available and accessible to the public online. In fact, not only is the full 18-page judgment in Cabral Douglas v The State of Dominica available online but a shorter, more reader-friendly Executive Summary is also available. The reasons for the court’s decision are fully and clearly spelt out.
Politicians neither sit on any of the key structures of the CCJ nor are they directly involved in its operations. Most importantly, over the past 12 years the independence of the Court has been confirmed through its many thorough and well-reasoned judgments, including several for and against the State. Like all courts, the CCJ hears the facts, listens to the contending legal submissions, applies the law, and makes a determination accordingly. The same principles apply whether it be an individual, company, politician or the State.
Regrettably, as in the Cabral Douglas case, some persons use judgments against them to feed into the mistrust of many Caribbean people for their own institutions, equating a ruling in favour of the State to being “in the pocket of the politician”.
Lacking objectivity and responsibility
For the avoidance of any doubt, the OECS Bar wishes to make it absolutely clear that court judgments are not beyond the boundaries of criticism. In fact, critiques and criticisms of judgments, however robust and passionate, are wholly acceptable and ought to be encouraged as they augur well for the evolution and growth of our law, for the professional development of lawyers, and for the education of the public. As such, we take no issue with litigants or lawyers criticisms of judgments. Such criticism, however, especially from a lawyer, who is an officer of the court, ought to be responsible, respectful, constructive, premised on objective facts, and designed to strengthen our institutions and uplift the administration of justice. Regrettably, the strident, contemptuous, inflammatory, and even defamatory, public criticisms of Mr Douglas fall far short of the objectivity, responsibility, balance and level of respect becoming of an officer of the court.
The CCJ represents the highest court for the Commonwealth of Dominica and we call on the Dominican Bar to look into this matter with a view to taking appropriate action.
Contributing positively to our Caribbean
Apart from completing the cycle of our independence, the CCJ spells greater access to justice for our people; comprises well-respected judges of international repute, both from and beyond the region; and contributes significantly to the development of our legal system in the Caribbean.
The OECS Bar pledges to continue to promote the rule of law, protect the independence of the Judiciary, and educate and sensitise our people on matters that touch and concern the administration of justice.
Let us together safeguard and build our regional institutions to ensure that they serve the best interests of our people.