The Caribbean Court of Justice will live up to expectations

Apr 26, 2019 Letters

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DEAR EDITOR,

As May 10 draws closer, speculations on the outcomes of the cases before the CCJ abound. The populace await with eagerness, seeing ourselves as swimmers in the sea poised on top of a huge wave which hangs uncertain as to which side it will fall; while many of us are optimistic it may heave us back to land, others feel it may roll them further out at sea. May 10, therefore, is expected to provide clarity, and hopefully closure to the 34-31 majority saga that hangs around our necks like an albatross.
The CCJ is expected to pronounce on, among other issues/concerns, whether 34 votes represent the absolute majority in a 65-seat Parliament. While section 106(6) does not use the word ‘absolute’, it defines it as ‘a majority of the elected members’. The argument therefore, centers on a determination of what constitutes majority of 65. The paucity of data/information/calculations/cases makes it difficult to find evidence, which would support the Guyana Court of Appeals’ assertion/decision that 34 votes constitute the majority. The general formula for majority odd number memberships/parliaments, unless the constitution or other instrument states differently, is (odd number + 1) divided by 2. In our context, it translates to (65+1) divided by 2 equals 33. In essence, a difference of one vote determines the majority/minority issue. This was the case of the no confidence motion brought by Margaret Thatcher against Prime Minister James Callaghan in March 1979. In that odd-number members of Parliament, Thatcher won/Callaghan lost by one vote.
The question before us, as we approach May 10, is whether the CCJ would uphold the unsupported calculation or ‘attractive formula’ advanced by the Guyana Court of Appeals. It is true that the Court aims to provide high quality justice that is responsive, innovative and inspirational. However, it should be responsive to the extent that it can rise to the challenges of the diverse communities; it should be innovative in fostering jurisprudence that is reflective of the region’s history, values and traditions, and consistent with international legal norms; and, it should be inspirational by holding steadfastly to the tenets of excellence in shaping a judicial system worthy of the trust and confidence of the people of the region. In essence, the CCJ’s responsive, innovative and inspirational roles should reflect what was envisaged by the proponents. Further, notwithstanding its role as the final court of appeal in fostering the development of an indigenous Caribbean jurisprudence, it has an obligation to demonstrate that Caribbean jurists are capable of dispensing justice with the highest of standards comparable with the best in the world.
It should be noted that one of the strongest arguments advanced for retaining the Judicial Committee of the Privy Council (JCPC) has been its ability to function as an impartial arbiter of the law. Proponents argue that the judicial integrity of the JCPC was maintained by its remoteness from regional conflicts and politics; and such geographic and social distance has had a stabilizing effect on its decisions. These are indeed salient reasons, given that less than a handful of CARICOM countries have relinquished ties with the JCPC.
At the CCJ’s inaugural event in 2005, former St. Lucia Prime Minister, Dr. Kenny D. Anthony called on lagging CARICOM member states to take the ‘leap to enlightenment’ by embracing the CCJ. To date, however, only four countries have ratified the CCJ as their highest/final appellate court. Ironically, St. Lucia, Jamaica and Trinidad and Tobago, the first two CARICOM countries to sever relationship with JCPC in what was commonly referred to as ‘removing the political yolk of colonialism’, are yet to ratify the CCJ as their final court. In light thereof, some commentators have argued that the CCJ should be seen, not as a final jurisprudential break from colonialism, but rather, as an overview and repeal of colonial laws. This argument, however, has proved flawed as the Court, in its 14 years of operations, has taken a creative, yet pragmatic approach in arriving at its decisions.
In a nutshell, Guyanese await the outcomes of the cases before the CCJ, especially with regards to what constitutes majority: 33 or 34?T hat leads to either of two expectations: On one hand, the government faction anticipates the CCJ upholding the Court of Appeals’ ‘attractive’ but erroneous formula which gave rise to 34 votes as majority; on the other hand, the opposition expects an overturning of the 34 and restoring of the High Court’s 33 as majority. In light of the supporting evidence, or lack thereof, I take the view that the CCJ will demonstrate its strong and unwavering capacity for dispensing justice and overturn the Court of Appeals’ decision. Let’s wait and see!

Yours sincerely,
Ronald Singh

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