COMMENTARY: CCJ is not beholden to governments

Political hubris and justice

By Sir Ronald Sanders

(The writer is the Antigua and Barbuda Ambassador to the United States and the Organization of American States.  He is also a Senior Fellow at the Institute of Commonwealth Studies at the University of London and at Massey College in the University of Toronto.   The views expressed are his own)

If there is any doubt that the Caribbean Court of Justice (CCJ) is not beholden to governments and does not yield to their wishes in making judgements, recent events should dispel it.

Freundel Stuart, whose tenure as Prime Minister of Barbados, was decisively terminated by the majority of the Barbadian electorate on May 24, had infamously declared, five days earlier, that “once” his party is returned to office, he would withdraw Barbados from the CCJ as the country’s final court of appeal.

The declaration, which conflicted with every previous public statement he had made about the CCJ, was characteristic of Stuart’s hubris.  In stating categorically that he would remove Barbados from the CCJ without consulting important sectors and institutions of Barbados society, including the Bar Association, other political parties, and, the people of Barbados, showed the haughtiness for which he has become notorious.

The rashness of Stuart’s declaration – and evidence that it was not a policy position that either he or his party had remotely considered – is clear from the fact that just two nights before he had revealed his party’s manifesto for the elections and not one word about withdrawing from the CCJ was contained in it.

Stuart was simply galled that the Justices of the CCJ found that, in dealing with matters of immigration and migrant rights, his government had twice violated the law.  The most recent judgment was published three days before Stuart’s petulant utterance.

In both cases, the Court upheld the lawful rights of the individual and protected them from abuse, giving comfort to all persons that the Court is not influenced by a government.

Stuart’s Attorney-General, Adriel Brathwaite, who was also rejected by the electorate, made it clear that the cause of Stuart’s “annoyance with the court” was both the finding that Commonwealth citizens, resident in Barbados for the requisite legal period, were entitled to vote in the Barbados general elections, and the 2013 decision that the treatment of Jamaican Shanique Marie by Barbados immigration officials violated her rights under the CARICOM Treaty.  

In other words, the decisions did not sit well with the domestic political platform of Stuart and his political party, particularly on the eve of general elections.  

In the fashion of the imperious Charles De Gaulle who famously said, “I am France”, Stuart claimed that he was not “going to have Barbados disrespected by politicians wearing robes”.   Barbados and Stuart were, in his mind, one and the same; clearly not something with which the Barbados electorate agreed. 

So, out of his own fury that the Court’s decisions could muddy his political waters, he cast the CCJ as a villain from which Barbados must keep “a safe, safe distance”.   In one fell swoop, “once” he got back into office, Stuart would dismantle the progressive and constructive work that leading Barbados Jurists, such as Sir David Simmons and Sir Henry Forde, had done to establish the CCJ, opening the door for all CARICOM countries to sever the remaining vestige of colonial dependency.   He would turn history on its head and reverse Barbados’ revolutionary role as the first country to accept the CCJ as its final appellate court in place of the Privy Council.

To add injury to insult, Stuart sought to disparage the Court by making the false claim that, in its appellate jurisdiction, the CCJ had heard only two appeals so far for this year.  The facts uncloak the untruth: the CCJ has delivered 13 judgements since the year began; another 9 cases have been heard with the judgements pending and another 8 are expected to be heard before the end of term on July 31.

Those who fear that the CCJ is the handmaiden of governments should take heart that in these events related to the government of Barbados. As with other governments, the CCJ’s performance has been in service to the law.

This should be an important consideration for electorates in countries, such as Jamaica, Trinidad and Tobago, and five of the independent nations of the Organisation of Eastern Caribbean States (OECS), who have to determine whether or not to join the CCJ as their final appellate court, abandoning the colonial link to the Judicial Committee of the British Privy Council.

The fear, often expressed at public hearings and elsewhere, is that the CCJ is the poodle of regional governments and, therefore, would take instructions from the political leadership in any actions involving individuals and civil society.

That fear should now be erased from the collective minds of the electorate in all these countries that will soon hold a referendum on the matter as required by their constitutions.  

The CCJ has shown itself to be as independent and competent as the Judicial Committee of the British Privy Council.  The Caribbean Court’s greater qualification is that, as its name indicates, it is “Caribbean”.  It is reflective of the region’s own capability and identity.  

Only four countries have so far liberated themselves from the ‘mental slavery’ which Bob Marley lamented.  The only thing that would keep the remaining CARICOM nations tied to the Privy Council is not the competence and fairness of the CCJ; it would be the superiority they attribute to others.

Freundel Stuart added a worrying dimension to his announcement that he would be rid of the CCJ; he said, in doing so, returning to the Privy Council would not be an option.   That left the frightening prospect that judges of the final appellate court in Barbados would be appointed by the political party in office.

It was to avoid such a scary occurrence that financing the CCJ and appointing its judges, were deliberately distanced from all governments to ensure its independence; its competence and its high quality.  Fortunately, with Mia Mottley as Prime Minister, Barbados will remain a committed founding member of the CCJ.

It is time for all Caribbean nations to give it full support to the CCJ, and by so doing, assert their sovereignty over all their affairs, and their equality with the best in the world.

That would be a good recovery from the illness of political hubris.

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