CCJ – A Final Court of Appeal?
I listened intently, on Wednesday, 23rd January, to the live broadcast of the address by the Rt. Hon. Sir Dennis Byron, President of the Caribbean Court of Justice, and found it to be at once enlightening and disappointing. In the light of the importance of the subject, it was remarkable for its conciseness, clarity and brevity and also for the information it provided. I also recognized that Sir Dennis was on a flying visit through Dominica to an important engagement elsewhere and therefore timing was of the essence both for the occasion and the presentation. I have had, however, a difficulty in accepting time-constraint as the only explanation for the obvious limitations of his presentation. There are reservations throughout the Region about the CCJ as an alternative to or reimportance for the Privy Council, of which he must have been aware, but they were not, in my view, seriously treated, nor were the basic issues involved in imposing limits peremptorily on a people regarding their right to seek vindication for perceived wrongs, wherever they can legitimately find it, squarely faced.
He referred, with evident satisfaction, to the CARICOM countries that have opted for the CCJ as their final Court of Appeal – Guyana, Barbados and Belize – but chose not to mention those other countries, also politically more advanced than we are, that have not yet given their assent – Jamaica and, above all, Trinidad and Tobago where, in fact, the Court has been located, and what might be the reasons for their hesitation. Quite rightly, he mildly rebuked Mr. Bernard Wiltshire who pleaded that a National Referendum should be part of the process towards the decision of the Government of Dominica in approaching the British Government for a change from the Privy Council to the CCJ as the final Court of Appeal by pointing out (what I am sure Mr. Wiltshire already knew) that the Constitution of Dominica did not require it, but he made no attempt to discover the reason for his plea regardless, nor did he mention St Vincent and the Grenadines, the one CARICOM country that has, so far, held a Referendum as required by its Constitution and their rejection of the CCJ.
For listeners who were already favourably disposed the presentation was therefore a masterpiece, but for others who listened with genuine misgivings and reservations it was disappointing. He went out of the way to outline the safeguards and guarantees in methods of appointment, security of tenure and of remuneration that have been entrenched against the possibility of interference, but failed to warn his audience that all these provisions would not automatically dispose of the problem, but only recognize that the danger existed and would continue to exist in the lower jurisdictions, which did not enjoy such guarantees, but from which, presumably, reimportances for the vacancies on high would be recruited. I was particularly interested to learn that the clamour for a Regional Court of Appeal to replace the Privy Council began as far back as the early 20th century, that is to say, at a time when appointments to the Judiciary must have been more political, tenure probably less secure, and remuneration far less attractive than they presently are. Even so there was such a high level of confidence in the independence of the judiciary that the clamour could be raised, and that, not only because politicians knew their place, but also because they knew that judges had the moral fortitude and integrity to tell all those who did not, and tried illegitimately to encroach on the independence and impartiality of the judiciary, "Get thee behind me, Satan…".
What then has changed that has given rise to the latter day misgivings, so great as to have have delayed acceptance by all the CARICOM member states of a Regional Court as the final Court of Appeal in which they have already made heavy investment? Is it really a retreat from Caribbean sovereignty as was suggested? Some, like Mr. Wiltshire, who are now expressing reservations, were fervent nationalists in the 1960s and 70s, at a time when, as far as I can recall, eminent jurists were none too vocal on the subject of sovereignty. What is it that has turned the tables 180 degrees? What has changed that has precipitated the flight of Governments in the Region from the Privy Council? What has changed that has made the people of St. Vincent and the Grenadines vote against the acceptance of the CCJ as their final Court of Appeal, as proposed, promoted and defended by the very Government they elected to lead them? What has changed in the Commonwealth of Dominica that the only way by which a National Referendum on the question can be held is said to be an amendment to the Constitution which neither requires nor forbids a Referendum? What has changed?
Sir Dennis was obviously right to make mention of the post-colonial countries in Asia and Africa which have long since abandoned the Privy Council for local or regional appellate jurisdictions – Ghana, Nigeria, Uganda, Kenya, Tanzania, Malawi, Pakistan and the Indian sub-continent. What might have encouraged me even more would have been an analysis that showed the extent to which the people are now happier with the administration of justice because the judges are prepared to lay their futures, nay their lives, on the line for the integrity of their profession. In any case, beside these other nations the Caribbean represents a curious, probably unique, case which must be, but is not always, appreciated. Geographically the region served by the CARICOM countries spans an area of the planet far larger than any of the countries that were named by Sir Dennis, but demographically it is infinitesimal. The entire population of the CARICOM countries is hardly more than a neighbourhood in the city of Calcutta. Smallness in population, coupled with smallness in the size of the individual territories has given rise to a problem of familiarity and intimacy which can be far more insidious than we would like to think and which, if not recognized and dealt with, is well able to subvert all the safeguards that have been put in place. Everybody who is anybody, after a while knows, or knows about, everybody else who is anybody. It is a sociological reality that has monumental implications for the administration of justice which, so far as I am aware, have never been seriously studied but which we ignore at our peril. For not only are the nobodies and the incognitos placed at a tactical disadvantage, but ultimately an establishment culture is consolidated to breed an ethos which can become oppressive if over-politicized. The universities, the judiciaries, the hierarchies and the media houses combine with the political directorate to keep things as they are. The sister to law is no longer justice but order. The criminals are the dissenters, the agitators, the demagogues and the iconoclasts. What refuge is there for a Regional Court against being sucked into an establishment ethos that is threatened by, and therefore abhors, resists and suppresses radical change? The one thing that can be said for the Privy Council is that remoteness is its refuge. It never was, nor can it ever be, part of that ethos.