For six years I served on the Regional Judicial and Legal Service Commission (RJLSC), the regional body responsible for the supervisory management of the Caribbean Court of Justice (CCJ).
The RJLSC has no jurisdiction over the hearing and deciding of cases before the court. Judging is exclusively the court’s business.
I gave up the time to serve on the RJLSC following the leadership of the Privy Council’s open statement, in 2009, that Caribbean appeals were taking up too much of their judicial time and were disproportionately death penalty cases. One was not sure how much attention our cases would receive in London in that atmosphere.
By that time, appearing in cases before the Privy Council had provided an understanding of the legal culture prevailing there. In addition, the Caribbean Court of Justice had established the excellence of its judicial output.
I was sure therefore that we needed finally to make the break from London because we had something of our own of top quality grounded in the laws of the region.
Readers therefore may be shocked that I was not surprised one bit by the recent defeats of referenda in Grenada—the second time—and Antigua that sought authorisation from the people to replace appeals to the Privy Council with appeals to the CCJ.
Just to be clear, this column relates to the appellate jurisdiction of the CCJ.
The CCJ has an original jurisdiction separate from its appellate jurisdiction. In the exercise of that jurisdiction it tries cases arising out of the Treaty of Chaguaramas, to which regional governments are parties and which established Caricom. One prominent original jurisdiction case was the Shannon Myrie immigration matter brought by a Jamaican national against the government of Barbados.
So why was I not surprised that the CCJ got two more cuff? Respectfully, it has little to do with the arguments about being colonial relics and completing our Independence. It has something to do with post-colonial insecurity, as well as craving foreign validation—sometimes reflected in shadings and straightening unnecessarily to alter unappreciated natural beauty.
Principally, however, the rejection of the CCJ is a function of low public trust and confidence in our institutions and deep seated fear of relationships and hobnobbing with regional politicians. I know it and I felt it in Grenada, when officially there before the first Grenada referendum was held in 2016.
These two recent referendum rejections are not the first setbacks. In addition to low public trust, certain other specific preceding events hurt the case for the acceptance of the appellate jurisdiction of the CCJ.
Jamaica and Trinidad and Tobago withheld accepting the appellate jurisdiction at inception and have persisted in doing so. This lack of engagement has played out as an updated version of the collapse of the West Indies Federation after Jamaica withdrew following a referendum there in 1961.
Nevertheless, had those territories that collectively accepted the appellate jurisdiction of the Court of Appeal of the Organisation of Eastern Caribbean States (OECS) come on board promptly, a fresh momentum may have developed. Incidentally not all of them had constitutional provisions requiring referendum approval—Dominica for instance—but that country only came on board in 2015.
Meanwhile Jamaica, in 1998, had moved to introduce the CCJ in place of the Privy Council but legislation that did not sufficiently entrench the CCJ from future legislative attack was struck down.
Then in 2009, St Vincent and the Grenadines put out a referendum but, as Grenada later did in its first referendum in 2016, St Vincent put the CCJ question together with a number of other matters unrelated to the CCJ.
That co-mingling of issues did not create a climate of trust or a debate environment on which the merits of the CCJ could be focused without all the other noise.
Another negative came in 2015 arising out of events in St Kitts. The then incumbent government tried to alter constituency boundaries immediately before calling an election and a number of issues about the constitutional validity of how it was done were raised.
In another column, I will complete the St Kitts story and tell of some recent self-inflicted wounds.