Fri | Dec 14, 2018

Matondo Mukulu | CCJ doing an excellent job

Published:Sunday | December 2, 2018 | 12:00 AM
Matondo Mukulu
Sir Dennis Byron (right), then outgoing president of the Caribbean Court of Justice, greeting his successor, Justice Adrian Saunders, who was sworn in on July 4.
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There is a high degree of irresponsibility floating around the Caribbean these days. It occupies positions of influence either as the elected government or as opposition parties. The danger inherent in this type of Caribbean irresponsibility is there for all, old and young, to see.

We had a most recent demonstration of this joyful embrace of irresponsibility when both Antigua and Grenada rejected the issue of replacing the United Kingdom-based Privy Council with the Caribbean Court of Justice.

For those of us who were born in the 1970s, we grew up on this false and irresponsible diet that fed us this rather anaemic diet that somehow justice delivered from the safe distance was better, even if the individual litigant had to pay some serious money for this erroneously perceived superior justice. Then in about 2000, the British government introduced visa requirements. This has not deterred or reduced the embrace of folly.

 

Silenced its Critics

 

Fast-forward to 2005 and the CCJ commenced hearing appeals in its appellate capacity from Barbados (little Britain), Belize, and Guyana. This presented those who, rather strangely, thought that the CCJ would be delivering inferior decisions with an opportunity to experience the evolution of Caribbean jurisprudence in action. The court has silenced its critics with its pronounced eloquence in a variety of areas of law.

In November 2018, a week after Grenadians chose to stay with the Privy Council, the CCJ delivered one of its classic constitutional decisions in Quincy Mcewan The Attorney General of Guyana [2018] CCJ 30 AJ (1). Quite briefly, the CCJ struck down as being unconstitutional a Guyanese statute that had made crossdressing in public a crime, but it also placed another nail in the Caribbean's love affair with savings clauses, which usually saved those unconstitutional pre-independence statutes from being struck down. This is our court moving the Caribbean's jurisprudence to reflect the change in our societies.

The irresponsibility continues around the Caribbean amid the silencing through lucid decision making. This then forces me to ask the question: What are we doing wrong? Why can't those who support the CCJ win any of these referenda with so much on our side? Is it that our arguments are weak?

Anaemic the arguments are not, but our message is being drowned out by our first failure. By first weakness, I make reference to the fact that we have not been assiduous in advertising and publicising the quiet revolution taking place in Caribbean constitutional law. Nothing resolves unjustifiable doubt like positive results.

Of course, it's not because the court has a distinctly liberal bent why we say it has been a success. It has been a success for the last 13 years because contrary to what the doubters have told us to fear, it has maintained its independence in a region where politicians sometimes forget that their reach must have limits.

The CCJ has been a success because it has embraced technology with relative ease. Accordingly, you can go online and catch its hearings in full, thus giving real meaning to the concept of open justice. It has been a success because its judges, as demonstrated in decisions such as Nervais v The Queen and Severin v The Queen [2018] CCJ 19 (AJ), are willing to see our Constitution as living instruments, thus calling time on anachronistic saving clauses.

 

Engaging with the Public

 

So why is the Holness Government, the people of Trinidad, and thus two of the larger members of CARICOM, still standing back from the CCJ? For me, part of the answer is to be found in the failure of the CCJ to actually engage with the region. By this, I don't mean the judges positively canvassing to liquidate the Privy Council. However, the court's administrative division must start engaging more purposefully with the general public. There's no better place to start than to organise for secondary-school students to visit the court and see it in action and, of course, arrange sessions where the judges engage with the students.

To some this might seem like simple steps, but no money can purchase the value inherent in a young person seeing active democracy. It builds faith, and, most important, it encourages confidence in the restoration and continuation of Caribbean democracy. This is the best antidote that can be used to put to rest what is left, with respect, to the anaemic arguments that are still being used to frustrate Jamaica replacing the Judicial Committee of the Privy Council as its final appellate court. I am mindful that it is perfectly consistent to say that the Privy Council has served us well, while saying that the CCJ is doing an equally good job.

Those of us throughout the Caribbean who support the CCJ being given the job to construct the regional jurisprudence must meet the opposition with the results we have had in our hands since 2005. We have not been doing this, and I say this as a person who has followed the most recent referendum held in Maurice Bishop's land where the Opposition totally misled the voters, and thus again, irresponsibility won.

We can no longer afford this. I agree with The Gleaner in its view that should Jamaica take the lead on this issue, others might just follow. The last time Jamaica took a major decision on an issue that engaged the survival of a regional entity, Dr Eric Williams summed it up in a manner that left us in no doubt that we are a critical force in this region.

However, that was in 1959. Can our first PM of the post-independence generation abandon his party's historical irresponsibility on this issue by getting his party to look at the evidence and accept that the sacred facts tell a different story: the Caribbean Court of Justice is working well and it is an independent court in every respect?

Prime Minister Holness can only do this if he has the courage to accept facts and then end the folly of paying for a court that we do not use, where the failure to make use is premised on an justifiable historical position.

- Matondo K. Mukulu is a practising public-law barrister and attorney. Email feedback to columns@gleanerjm.com and kamaumukulu@yahoo.com.