The future of the Caribbean Court of Justice (CCJ) is not a hot topic and I will soon return to our mainstream woes, including violent crime, which is still prevailing despite rounds of fat talk. It is necessary nevertheless to leave some record as to why, despite its 13-year existence and the quality output of its judgments, only four Caribbean countries have accepted the appellate jurisdiction of the CCJ.
Last week, I narrated the setbacks to acceptance that preceded the defeat earlier this month of referenda in Grenada (a second time) and in Antigua and Barbuda.
I made preliminary reference to events in St Kitts in 2015, which resulted in a feeling that a successful appeal to the Privy Council had “saved” St Kitts from a constitutional perversion.
Immediately before the calling of a general election in 2015, the incumbent St Kitts government sought to have new constituency boundaries. Except for a brief period when an interim injunction was obtained, the challenge to the proclamation establishing the new boundaries failed before the trial judge and the Court of Appeal and the new boundaries stood.
However, the challenge against the new boundaries succeeded in the Privy Council. The election was accordingly held on the basis of the old boundaries and the incumbent government lost the election.
There is a sensitivity in the Caribbean region about election petitions. Naturally, the St Kitts events heightened that sensitivity and undoubtedly further muddied the case for the replacement of the Privy Council.
Such petitions should not be a factor to consider in Trinidad and Tobago because our Court of Appeal is the final court for election petitions; but should we now have a sensitivity about them, given unresolved allegations concerning the office of Chief Justice?
As to self-inflicted wounds on the CCJ, on occasion, including after this month’s referenda, CCJ judicial personnel have made public remarks about the region not making full use of the CCJ. These remarks have attracted contentious responses from political quarters.
In addition, others feel that the judges of the court should not be salespersons for the acceptance of the court on which they sit because the choice whether to accept the appellate jurisdiction of the court is a political decision on which politicians express their views. In these circumstances, judges risk being identified as political allies or adversaries.
This is not farfetched. The pro-Brexit media in Britain lustily supports Britain’s withdrawal from the political and economic union of 28 European countries (the European Union).
They researched and published the links of senior judges—including the members of the United Kingdom Supreme Court and their spouses—with continental European bodies.
The Brexiteer media did so when the courts were hearing a case to decide whether the UK government additionally needed parliamentary approval to trigger the article that would lead to Britain’s withdrawal from the European Union, even though the British people had voted to withdraw by referendum. At one point, a newspaper described the judges as “the enemies of the people”.
During the recently ended presidency of Sir Dennis Byron, there was also uncomfortable focus on the president of the CCJ attending conferences of regional heads of government for the limited purpose of discussing matters concerning the proper administration of the CCJ.
There was a school of thought that such a duty would be more appropriately performed by members of the Regional Judicial and Legal Service Commission other than the president, its ex-officio chair.
Conferences and courtesy calls lend themselves to hobnobbing. Prudent judicial personnel should not hang out and be exposed to having their presence among politicians unfavourably perceived, as happened in 2017, rightly or wrongly, in one well-publicised case arising out of Dominica.
There is a similar risk when the court gets involved—as it has, in third-party funded projects. The court should stick to its core business of deciding cases before it.
The weight of the negative events, which I have described, in my opinion means that the answer to the question is yes. Acceptance of the appellate jurisdiction of the Caribbean Court of Justice is now in a long-term stall.