Dear Editor,
During the last ten years, the Caribbean Court of Justice (CCJ) has been trying to find takers among the Caricom members.
T&T has been resisting ascension to the CCJ and succeeding governments are reluctant to put it to a referendum fearing atonal rejection. There is no referendum whereby the people in any territory have been allowed to say whether they wish CCJ to replace the Privy Council where the judges of the Supreme Court of the United Kingdom hear appeals from the Caribbean nations.
The only countries that have acceded to CCJ so far are Barbados, Guyana, Belize and Dominica; none by referendum like what happened in the UK last month or used in St Vincent some five years ago when it was rejected. Dominica does not have many cases and its accession to the CCJ is of no great significance.
Barbados has a few cases, but there is widespread dissatisfaction in Barbados among the Lawyers who have been involved in cases at the CCJ, claiming the decisions are poor.
The Inter-American Court of Human Rights, which hears appeals in Human Rights cases, has already reversed an important judgment which the CCJ gave concerning a murder accused who wished to lead certain medical evidence but was denied the opportunity.
Some lawyers in Barbados and Guyana who have appeared before the CCJ have called for its abolition.
Guyanese have had to deal with the CCJ because they were left without a proper neutral third Court when the Dictator of Guyana in 1972 abolished appeals to the Privy Council and replaced it with a court he controlled; judicial proceedings in Guyana were politicised and justice thrown out the window replaced by Burnhamism. Guyana embraced the CCJ in 2005 but there has been dissatisfaction with the work of the Court.
No critical studies of CCJ’s rulings have been undertaken during the ten years in which it has been making decisions for Guyana. The administration of the Court has come under severe criticism from legal luminaries in all four countries where there is jurisdiction. Judicial and clerical incompetence have reached the point where taxation of bills of costs is not being done and complaints have not attracted any effective response.
There has been no serious study of the level of satisfaction and confidence the CCJ enjoys among members of the public and in the legal community.
Many difficult questions are not being asked and considered:
1. Has the workload of the court been increasing? No one is looking at these trends. A decline in the workload of the court may indicate a loss of confidence in the quality of the work of the court.
2. Has the court been guilty of delay in the hearing and determination of appeals? The court which has not been hearing more than 15 cases per annum recently took more than a year to deliver a judgment in the Maurice Tomlinson matter.
The case took about three years to be determined.
The court apologised for the delay. It had earlier held such delays to be a violation of the constitutional right to a fair hearing within a reasonable time. There are other instances of delay.
3. Has the court been advancing and unifying the jurisprudence of the region? This was one of the justifications for setting up the court.
4. Has the court been delivering inconsistent judgments?
5. Are the decisions of the court being followed by other courts in the region and around the world?
6. How well has the court been able to deal with the problems that are unique to the region?
7. Do any of the judges have any third court experience? From all indications, none of the judges practiced before a final court.
8. Do these judges meet the criteria for appointment to the final courts in other jurisdictions? Some of the judges would not meet the practice and other requirements necessary for an appointment to a first instance court in some jurisdictions.
9. How much importance is being given to appointing judges who are experienced in the practice of law? Some of the judges had no or very little judicial experience prior to appointment. Some were never involved in the practice of law.
The truth is that the Judges of the Court are not recruited on the same principles as the Judges of the Supreme Court and Privy Council in England who are appointed after very distinguished careers at the Bar and in the higher courts of England, Wales, Scotland and Northern Ireland.
There are Judges of the CCJ who have never had legal practice in a third Court or practice of the kind which sees elevation from the Bar to the High Court of Justice in England or Northern Ireland or the Courts of Session in Scotland.
The consequence is that standards of adjudication are different in the CCJ from what prevails in the Supreme Court of the United Kingdom and Privy Council.
Dissatisfaction with the CCJ in the region will increase and fewer cases will be taken to CCJ. Justice has not improved with the CCJ which does not operate with the same high standards as when appeals to the Privy Council were treated. Thus, it is time that there be a review of the judicial proceedings of the CCJ in order to make it better to serve justice in those countries that accept it as a final court of appeal.
Guyana may also wish to look at another system of appeal since the CCJ has produced some irrational decisions regarding Guyana.
Yours truly,
Dr Vishnu Bisram
