The CCJ debate – a commentary

By Rev. Dr. William W. Watty

I listened to the debate in the Dominica House of Assembly on the amendment to the Constitution to enable the accession of Dominica to the Caribbean Court of Justice as the Final Appellate Jurisdiction in replacement of the Judicial Committee of the Privy Council and, except for the opening part of the contribution of the Member for the Marigot constituency, I heard the whole debate. The problem of political interference was not seriously debated partly because of the vigilance of the Speaker, but more because the debate, in any event, was by and between politicians. I remain convinced, however, that this is an issue that lies at the heart of the change that is about to be made. I have been able to isolate three basic causes that have not been openly discussed

1.Short of its status as an Appellate Jurisdiction, there is not enough work for the CCJ to justify the cost.

2.The glut of trained and professional legal practitioners in Anglophone Caribbean is approaching crisis levels.

3.The fact that the Judicial Committee of the Privy Council is beyond the reach of political interference from the lower jurisdictions is a problem that makes latter-day politicians uncomfortable.

I am concerned that the one argument in favour of the CCJ as the Final Appellate Jurisdiction that would have convinced me viz. the documentary evidence of the unwillingness of the Judicial Committee of the Privy Council to continue to receive appeals from the Caribbean jurisdictions was not produced. On the contrary the Attorney General, in his contribution, read a letter from the Presiding Judge of the Judicial Committee, expressing sorrow because of the termination of the relationship. My suspicion of a hoax is therefore still to be allayed. The earliest recollection I have of that notion was a speech by the Prime Minister of St. Lucia. At that time it was mere conjecture. "Suppose" he said, "the Privy Council decided not to receive any more appeals from the Caribbean where would we be?" (or words to that effect). Then all of a sudden the supposition became a fact which, if true, would have been enough to justify the CCJ as a replacement with all the risks involved and it would have had my support. But if all the documentary evidence the Attorney General could produce in the final debate is a communication that suggests quite the contrary, then I have to conclude that we have been misled.

The nationalistic argument that was earlier bandied about was scarcely mentioned in the debate. The CCJ had at one time been proclaimed as the capstone and the crowning glory of Caribbean Nationhood until, I assume, someone discovered to his/her chagrin that there was no longer any such thing as Caribbean Nationhood since the demise of the Federation, and certainly since the invasion of Grenada, and that Dr. Eric Williams' formula "10 – 1 = 0" still held sway. I noticed more recently that the tune was changed from "Caribbean Nationhood" to "Caribbean Architecture", but the question still remained "What on earth is that?" Happily neither of these fantastic delusions featured in the debate.

The economic argument was no more convincing. Why should the cost of litigation be such a concern to the governments of the Caribbean that a Special Appellate Court should have been instituted to help, nay encourage, citizens to litigate? Litigants fall into three categories, the very wealthy, the very aggrieved and the very stupid, and the distance or proximity of the Court does not allow for a fourth. No man who is poor and wise will consider litigation as an option unless he is sure that his case is open-and-shut, in which case cost is not his problem wherever the trial is located. If he is not sure about his case, wisdom dictates that he should seek an amicable settlement out of court. If someone slanders me and the slander is true I should thank him, if it is not true I should "take it to the Lord in prayer", but I do not intend, on the one hand, to see the interior of a Court in session except from the waving gallery, nor do I, on the other hand, believe it is the business of any government to set limits to where I should seek vindication or redress for a grievance, should that time ever come, unless I gave government that clearance in a Referendum. The cost of litigation is my funeral not theirs; but now what we are hearing is that by bringing the Final Court of Appeal from London to Port of Spain and making it itinerate from territory to territory, more aggrieved peasants at Sam's Gutter and Over Gutter will be more able to litigate more often and engage more of the surplus lawyers in Roseau to represent them before more of the newly created judges. The economic question that was not raised, however, was "How many Appellate Jurisdictions do we need for our small population and how many levels can we afford. If the CCJ is so well financed and will itinerate, why do we still need an Eastern Caribbean Supreme Court?

Let me then return to what I think must be the main issue in the constitution and functioning of the CCJ as the Final Appellate Jurisdiction viz. Political Interference. The very fact that the framers took the trouble to institute iron-clad safeguards against such a possibility is itself an admission that a danger exists. In his contribution the Prime Minister made a telling observation and not without some vehemence. He informed the House that the appointments to the Supreme Court of the United States of America and to the Judicial Committee of the Privy Council were unapologetically political appointments made by the President of the United States of America, in the one case, and the Prime Minister of Great Britain in the other. Of that I confess I was not aware. I therefore I appreciated the more the point he was trying to make. In fact I even began to feel for him. "If that is how they do it in the UK and the USA, why all this fuss about a little interference every now and then?" At least he was honest and up-front about it, and who can blame him? That is the political culture we have allowed to emerge of which he is merely the product. The result is "Away with the Privy Council!!" That I can understand; but don't tell me that it is the Privy Council that wanted to get rid of us, when the only document that has been forthcoming on the matter is an expression of regret that the connection could not continue.

Finally, let us examine the safeguards that have been entrenched against the possibility of Political Interference. As I understand it they cover a fool-proof method of appointment and remuneration and security of tenure, by removing them from the authority of the various governments. So far, so good. The question, however, is whether even these safeguards will work in a political culture where the political involvement has become a way to secure and lucrative livelihood and politicians do not know where to draw the line or how to stop. In such a case there is no safeguarding of the integrity of the Judiciary, so long as the calibre of the Judges who are appointed is overlooked or taken for granted. A wounded toe is not healed by adorning it with a shoe and sock, but only by attending to the wound. If calibre is there it is there, and you need no further safeguards. If calibre is not there it does not automatically arrive with the safeguards that have so far been put in place. It is just not there.

What then do you do? You deal with the problem of calibre as a problem not as a wish, a hope or a prayer. You tackle the problem from the other end. Short of setting up tape recorders and video cameras in every office you regulate the appointments with that problem in mind. Any member of the Judiciary who encounters a problem of political interference should immediately admonish the offender by word, followed by letter copied to the President of the CCJ, who shall then alert all the Judges in the Appellate and the lower jurisdictions. Failure to admonish and report, afterwards discovered, must be treated as complicity, which then becomes cause for disqualification and removal from the Bench. A subsequent report of a repetition by the same offender from any member of the Judiciary should be treated as contempt of the Court, which, if proven in open Court, must be reported to the Competent Authority with a view to his/her immediate removal from office.

Such provisions, by themselves, would have been more effective as a deterrent and less expensive than those that were put in place. However, together with them, they should go a long way in curbing the temptation and secure the integrity of the Judiciary. For, notwithstanding all that I have written on the subject, I happen to be in favour of a Regional Court that replaces the Judicial Committee of the Privy Council, except that I was much more in favour before 1992. We therefore cannot be naïve about the potential of such an institution as the Caribbean Court of Justice for arresting or accelerating the political decline and for advancing or frustrating the emergence of a Caribbean civilization.