What now for the CCJ?


Sunday, November 11, 2018

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The prospects of the Caribbean Court of Justice (CCJ) expanding its appellate jurisdiction beyond the four countries that have already signed on (Barbados, Guyana, Belize, and Dominica) was dealt a severe blow last week. The voters in Grenada as well as Antigua and Barbuda roundly rejected the proposal for it to replace the Judicial Committee of the UK Privy Council as their final appellate court.

This proposal has now been rejected on four separate occasions within the last 10 years by the people in three Caricom countries. The consistency of the numbers coming out of all these referenda is worth noting.

(see table)

The 2009 referendum in St Vincent & the Grenadines had embedded the CCJ issue in a new draft Constitution that the voters rejected, leaving open the question as to whether the people were against the CCJ move specifically or were not in favour of other constitutional changes with which it was packaged.

Prime Minister Keith Mitchell of Grenada, not wanting to suffer the same fate, included the CCJ proposal as one of a number of changes put to the people in 2016, allowing them to vote separately on each question. They rejected all the proposals, including that related to the CCJ. This time around Prime Minister Mitchell put the CCJ question as the sole referendum issue, as did Prime Minister Gaston Browne in Antigua & Barbuda. The voters again said no.

Prime Minister Browne declared after the referendum last Tuesday that he has no intention of putting the issue to the people a second time. Prime Minister Mitchell is unlikely to make a third try. The bar is very high. In both countries the change requires a two-thirds majority in a referendum, an almost impossible target. For all intents and purposes, therefore, Grenada and Antigua & Barbuda are now off the table in terms of the CCJ as their final appellate court — the people having spoken.

What is significant is that both these referenda were held shortly after the governments seeking approval had been re-elected with crushing parliamentary seat majorities — 15:2 in the case of Antigua & Barbuda and 15:0 in the case of Grenada. That they were unable to persuade many of their own supporters to toe the line suggests that the results reflect more than just muscle flexing by the Opposition parties which, in both countries, urged voters to vote no.

For whatever reasons, valid or uninformed, the people simply were not prepared to ditch the Privy Council for the CCJ. Several of the voters who were interviewed last Tuesday expressed the view that, in relation to the Privy Council, “if it ain't broke, don't bother to fix it”. If justice is supposed to be blind, they seem to be saying, what is wrong — indeed it may be better — in having that justice dispensed by a bunch of foreign people far removed from local culture and prejudices?

Now that Grenada and Antigua & Barbuda are out of the game, what of Caricom is left? The Bahamas had long signalled that it had no intention of abandoning the Privy Council. Haiti and Suriname operate under the Napoleonic Code of law and so are not potential subscribers to the CCJ as a final appellate court. This leaves Jamaica, St Kitts & Nevis, St Lucia, St Vincent & the Grenadines, and Trinidad & Tobago.

Differing constitutional arrangements

The constitutional requirements for countries to join the CCJ differ. Belize and Dominica were able to proceed because their constitutions do not require the holding of a referendum and the governments there controlled sufficient parliamentary seats to secure the required three-fourths majority in the legislature.

St Kitts & Nevis does not require a referendum, but the enabling Bill must be approved by a two-thirds majority in the House. In St Lucia, a three-fourths majority in the House plus a simple majority in a referendum are required. Despite the strong support for the CCJ by former prime ministers of St Kitts & Nevis and St Lucia — Dr Denzil Douglas and Dr Kenny Anthony, respectively — neither of them had the parliamentary majority to secure the required legislative approval and so St Lucia was not able to even advance to the referendum stage. Their successors, Dr Timothy Harris and Mr Allen Chastanet, have made it clear that the CCJ, as their final court, is not a priority for their governments.

St Vincent & the Grenadines requires a two-thirds majority in the House as well as a two-thirds majority in a referendum. With its voters having rejected the proposal in the 2009 referendum, and with similar rejections subsequently in two other Caricom countries, it is highly unlikely that Prime Minister Ralph Gonsalves would again try to swim against that current.

In the case of Trinidad & Tobago, no referendum is required, but an enabling Bill would need a three-fourths majority in the House and two-thirds in the Senate. In effect, it would require agreement between the Government and Opposition, neither of which has shown any enthusiasm for leaving the Privy Council.

The Jamaican situation

In Jamaica's case, no referendum is constitutionally required. An enabling Bill would need a two-thirds majority in both the House and Senateand up, which means that there would have to be consensus between the Government and the Opposition. Prime Minister Andrew Holness has made it clear that, although not a constitutional requirement, such a decision would have to be endorsed by the people in a referendum. There does not appear to be any plan to hold such a referendum any time soon. It would hardly surprise me if the results of such a referendum, if held, were no different from those delivered in the other three Caricom countries.

How would the lead-up to such a referendum in Jamaica play out? The Jamaica Labour Party has not definitively said no to the CCJ as our final court but it is clear that among their senior members reservations abound. The People's National Party (PNP) would certainly encourage a yes vote but, if the experience of the other countries that have held referenda is anything to go by, it would be wise not to presume that all its supporters would buy into it or that it would be able to persuade a significant number of uncommitted voters to do so.

This is perhaps one of the reasons why the PNP is opposed to a referendum. Apart from being haunted by the ghost of the 1961 referendum, it also fears that the vote will be 'partisanised' without any real consideration of the issue itself. It may well be correct.

Yet Prime Minister Holness's position that such a fundamental alteration of our judicial and constitutional arrangements should not be carried out without consulting the people cannot reasonably be faulted. To do so would be to suggest that, on an important issue like this, we should not allow ourselves to be disturbed or influenced by the views of the people. In an age where the people demand greater consultation and involvement in critical decision-making, that position would be untenable.

Other impacting developments

The future prospects for the CCJ are also being impacted by other recent developments. Barbados signed on smoothly in 2005 because the move had the support of both the Government and Opposition and the Bill was therefore able to secure the super majority required. However, just before the elections earlier this year, Prime Minister Freundel Stuart declared that if his party was re-elected, it would move to withdraw Barbados from the CCJ's appellate jurisdiction. He was apparently upset by not only the CCJ decision in the Shanique Myrie case but also its decision on the eve of the elections regarding the right to vote by non-Barbadian Commonwealth citizens resident in Barbados.

The Opposition in Guyana has also attacked the credibility of the CCJ following its ruling earlier this year that the constitution does not allow former President Bharrat Jagdeo to stand for election again.

For all intents and purposes, therefore, it appears that the CCJ's appellate jurisdiction will remain confined to the four existing subscribers, at least for the foreseeable future. What will this mean for the CCJ?

CCJ report card

The CCJ has a complement of seven judges. Its original jurisdiction is limited to the interpretation and application of the Caricom Treaty. In that dispensation, it has dealt with 22 matters since its inception in 2005.

In its appellate jurisdiction it has decided 160 cases in the last 10 years. As a comparison, the Judicial Committee of the UK Privy Council has a complement of 12 judges and has decided 409 cases over the same period. Caricom countries accounted for 223 of these cases led by Trinidad & Tobago (90), Jamaica (49), and The Bahamas (47).

This is not a fair comparison since the CCJ hears appeals from only four countries, two of which signed on within the last 10 years. The Privy Council, on the other hand, receives appeals from 24 countries (including British overseas territories). What this means, however, is that the CCJ is underworked, through no fault of its own, and will continue so to be for the foreseeable future. But as a further comparison, the Jamaican Court of Appeal, despite all its deficiencies, decided 247 cases in 2017 alone.

Although I have no competence in jurisprudence, it seems to me that the CCJ decisions, some of which I have read, are of high quality. After some initial struggles prior to its establishment, the independence of the judges and their insulation from political influence or interference seem to be intact. Its financial sustainability through the CCJ Trust Fund, to which Jamaica contributed US$25 million, is holding, despite some losses sustained during the global financial crisis 10 years ago. Its annual operational cost is approximately US$6.5 million, which is adequately provided by the Trust Fund.

A major concern, however, has to do with the development of its jurisprudence because of the limited inflow of cases. Courts mature and jurisprudence is advanced as more cases are heard and decided. Sixteen cases per year do not provide the depth, expanse and diversity for the robust advancement of Caribbean jurisprudence.

Continued access to the Privy Council

A concern frequently expressed is the possibility that the British Government may one day decide that the Caribbean is too much of a bother and their appeals will no longer be allowed. The pronouncement in 2009 by Lord Phillips, who presided over the Judicial Committee of the Privy Council, that appeals from independent Commonwealth countries had become a burden and that they should devise their own final appellate systems created quite a stir among pro-CCJ advocates.

That view was not supported by the British Government, and Lord Phillips' successor, Lord Neuberger, indicated that appeals from Commonwealth countries would continue to be welcomed. He obviously saw value in hearing cases from these countries as a means of further developing Commonwealth jurisprudence. The current president, Lady Hale, shortly before she assumed office, was quoted in an interview as saying “there always will be a need for the Privy Council to maintain its judicial function, even if it will only concern a few small countries”.

The failure of the CCJ to achieve the inclusiveness and growth originally envisaged should not be surprising. That has been the fate of so many other regional initiatives. It is now facing a reality check given the recent referenda results and their implications for its future. The debate about Jamaica acceding to its appellate jurisdiction will most likely dissipate.

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