Opinion: The CCJ has proven its judicial competence

CCJ Headquarters, Trinidad and Tobago
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(Guyana Chronicle Editorial, 8 July, 2018) – Last Wednesday, another milestone was reached in the life of the Caribbean Court of Justice (CCJ), when the Honourable Justice Adrian Saunders, serving as judge since 2005 in the Caribbean’s premier judicial institution, became its third President. It was also historical, as Justice Saunders became the first law graduate from the Caribbean to ascend to such a distinguished judicial office.

The fact of this occurrence, as well as Justice Saunders becoming the third Judge from the Caribbean Community to succeed to this very high judicial responsibility, speaks of the deepening of the integration process, apart from the seminal recognition that the Region’s law schools have been producing quality graduates that are on par with others from any other region of the world.

In fact, many of the regional graduates have since distinguished themselves as judges and other very senior judicial officers in their respective nations. This stands as testimony to the distance along which the regional legal institutions have travelled as regards setting standards that are comparable.

It is against this background that we seek to understand Justice Saunders’ statement during his address to the recent gathering of the Community’s Heads of Government that reflected his disappointment about the perception of some members of the community of nations that the CCJ is not “effective and efficient”, and that “member states have no good reason to doubt the CCJ’s ability to grasp full responsibility for interpreting and applying the law…”

The Honourable Mr. Justice Adrian Saunders

The recently given decision on the Government of Guyana’s appeal (AG Vs Cedric Richardson) third-term case, is yet another timely reminder of this court’s established capability and competence.

It is astonishing that an institution that has been fully operational since its inauguration in 2005, with a judicial decision-making track record that has been adding significantly to the building of Caribbean jurisprudence, and with no backlog, has come to the junction where its newly installed president has to be still convincing those signatory island-states that have not yet acceded to the court’s membership as to its competence.
This is a most serious indictment as to the general Community’s claim to be politically independent sovereign states.

As a reminder, political independence for a people means the departure from all facets of colonial control, and the creation of the nation state where the right of self- determination is paramount. Further, it means being in charge of its own affairs, thereby determining the destiny of people and country.

Therefore, it is about the establishment of those well-known symbols of nationhood:a flag, and national anthem, as examples. But even more important is the creation of institutions that will fashion a course of political, social, economic and cultural independence. These newly created platforms are what will define our independence and sovereignty as a people.

The regional integration movement must be given credit for the fashioning of institutions that define its existence, and seek to advance the cause of regionalism with a common purpose and outlook that are the reasons for its existence. But what purpose does regional integration among Caribbean island states serve, when their respective island judicial systems do not finally decide matters?

It has to be the greatest contradiction of modern Caribbean political development and thought, that has even taken the quantum leap of agreeing to the Caribbean Single Market and Economy (CSME), and there is still reluctance by most member states to accede to the very key Community institution of the CCJ.

Sadly, it is now 13 years since the operationalising of the CCJ, but only four Community Member States are members. Astonishing, to say the least, especially when one takes into account the many half-hearted statements that are a disguise and willful negativism against this institution. How must one interpret a recent public statement by a then regional head who accused the judicial institution of having judges who were “politicians in robes”? Such a statement was derogative, to say the least, in that it questioned the Court’s independence, since the judges’ only fault was that they made a decision that went against the particular island state.

Even the convincing promise of one island state that it will only become a member of the regional judicial body when there is a representative judge has still not been met, although that judge has ever since been appointed. The absence has continued, and so has other islands, where there have been repeated plans to hold referenda to determine the acceptability of this court as their final court of appeal.

This is an indictment of the self-doubt mentality, and even belief that Caribbean jurisprudence is not competent in determining matters within the regional jurisdiction.

There is no doubt that this attitude permeates the general attitude of many Caribbean leaders, and, sad to say, some legal minds. But, it is also a very grave insult to a collective that has produced some of the finest legal minds: The eminent brilliance of Sir Hugh Wooding, Sir Herbert Duffus, Sir Isaac Hyatali; the great legal minds of the Luckhoos, especially Sir Lionel, who was recorded in the Guinness Book of Records as being the most successful, consecutive murder appeals lawyer; the great Telesford Georges; the scholarly Professor Aubrey Bishop; and, easily the greatest legal mind of his generation, JOF Haynes.

These very eminent gentlemen who have since been long departed, and others deceased, and also alive, have left their indelible print in the pages of Caribbean legal scholarship, and in the process laid the credible foundation for what is indeed a durable volume of regional jurisprudence.

How can the region still claim political independence when its final legal decisions are being made in the distant European capital of its former colonial master?
From as early as the 19th Century, a British law-lord suggested that it would be better for the Caribbean to have its final court of decision, because of its customs and habits peculiar to the region’s local experience.

Since then, 200 years after and as recent as 2009, there have been similar views and suggestions from other British legal luminaries, even adding that it is time-consuming for the British Privy Council to adjudicate on matters from the Caribbean, as well as opining that it would be less expensive for litigants from the latter, should there be a regional judicial tribunal, as the CCJ is.

How embarrassing such admonishments are for a region to understand that it must invest confidence in its own judicial arm, that has more than proven its worth as the Region’s final legal adjudicator, and judicial ability in aiding the cause of especially the CSME component of the Regional Integration Movement.

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