I believe that the CCJ has jurisdiction

Jun 26, 2020 Letters

Dear Editor

To say we are in interesting times is an understatement. I decided to write as I just listened to an APNU+AFC meeting where some were being told that Bharrat is taking the matter to the CCJ when it was he who signed the Act empowering the CCJ and therefore he should know that the Court of Appeal is the final court of appeal and the CCJ Act precludes such matters to be taken to it.
I find this worrying as I know what lies to the public can result in. I recall during the protest in the early sixties lying to protesters telling them a child died when it was not so resulted in all hell breaking lose with a number of people being beaten. I am beginning to wonder what is the endgame of the ruling party.
I am not a lawyer but sometimes a good knowledge of English is enough. So I will give my understanding of the written words. The Present Constitution was put in place in 1980. The Act putting in place the CCJ as our final court of appeal was in 2004.
The Attorney General (AG) argues that on a plain reading of Article 177 (4) of the Constitution and Section 4 of the Caribbean Court of Justice Act, no appeal shall go to the Caribbean Court of Justice in respect of matters determined by the Court of Appeal under Article 177(4).
So let’s look at what Article 177 (4) of the Guyana Constitution says. It states as follows, “(4) The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as that question depends upon the qualification of any person for election or the interpretation of this Constitution; and any decision of that Court under this paragraph shall be final.”
I believe that this is pretty clear and straightforward and in force at a time when indeed it was the final Court of Appeal. But in 2004 Guyana signed on to the CCJ making it the final court of appeal.
The question is, would the CCJ replace the Guyana Court of Appeal? The Answer is yes. The AG agrees but argues that there is one limitation, election matters, and argues Section 4 of the Caribbean Court of Justice Act confirms such limitation. So, let’s examine Section 4. It states: “Nothing in this Article shall apply to matters in relation to which the decision of the Court of Appeal of a Contracting Party is, at the time of the entry into force of the Agreement pursuant to the Constitution or any other law of that Party, declared to be final”.
Indeed, this is a limitation, but we need to examine closely the construct of this Section. It says, “Nothing in this Article shall apply to matters in relation to which the decision of the Court of Appeal of a Contracting Party is declared to be final”. This seems to be straightforward except for in my opinion “is” may not be the correct verb. It does limit the Powers of the CCJ. So now the question is why the inclusion of, “at the time of the entry into force of the Agreement pursuant to the Constitution or any other law of that Party”. This to me is also a limit placed on the limitation and as such the restriction to the powers seems not to be permanent or all encompassing. It seems that matters that were declared final at the time the CCJ entered into force could not be taken to the CCJ.
In other words the CCJ would not look into matters that were already declared by the CA when it was the final court of appeal. The CCJ would not look back. There is nothing in the laws, in my humble opinion, that says the CCJ cannot look into matters that are new; that it could not assume full jurisdiction for new matters where the parties would be fully aware that there is another higher court to appeal to.
This is, I believe is the plain and simple understanding of the English used.

Yours truly,
Rajendra Bisessar

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