Are we looking for a court which will base its judgments on the law at hand?
Dear Editor,
The issues regarding the Caribbean Court of Justice (CCJ) vs the Privy Council (PC) may depend on what we are looking for in a final appellate court.
The issues of political pride and access are of course important; however, there are other issues which are worthy of consideration. One such issue ought to be the approach of the court in the interpretation and application of legislative texts, including constitutions. Are we looking for a court which will base its judgments on the law at hand as is contained in the text or are we looking for a court which will utilise everything at its disposal in order to arrive at decisions which, in the opinion of the court, will “close the gap between law and society”?
In an address to the Belize Law Conference in 2022, Justice Peter Jamadar of the CCJ stated as follows: “In effect, the decision in Nervais and Severin is monumental in Caribbean jurisprudence, because it establishes that even the literal text of a constitution is not inviolable and is at once subject to certain basic underlying principles. What becomes normative and authoritative is ultimately not the letter of the text but the basic deep structure (certain non-derogable features, principles, and values) that underpins, informs, and constitutes the text as a constitution.”
In similar vein, the president of the CCJ, Justice Adrian Saunders, on August 3, 2022, whilst addressing a local audience of judges and other dignitaries stated that: “In a healthy democracy, a decent percentage of the judgments of the Court of Appeal, perhaps about 10-15 per cent should be appealed to the Apex Court so that the court can interstitially and in partnership with legislature close the gap between law and society .”
Note that the president defines role of judges as being in the same category as that of legislators! Who gave judges that role, that is, to make decisions on policy and to partner with our legislators? It would appear, therefore, that the CCJ does not consider itself to be bound by the text of a constitution, particularly in regards to what it considers to be “human rights values”. This is to be contrasted with the approach of the PC, which, in the case of Jay Chandler v The State (Trinidad and Tobago) 2022, UKPC 19 reaffirmed its approach: “The Board has a well-established approach that its task is to interpret the words of a Constitution and that judges are not to substitute for those words what they think the Constitution should be… A Constitution is an exercise in balancing the rights of the individual against the democratic rights of the majority. On the one hand, the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected; on the other hand, the powers of the legislature must not be unduly circumscribed if the democratic process is to be allowed its proper scope. The balance is drawn by the Constitution. The judicial task is to interpret the Constitution in order to determine where the balance is drawn; not to substitute the judges’ views where it should be drawn.”
We have at this time a court, the PC, which is willing to respect the text of a constitution, which is to be contrasted with the CCJ, which has an agenda to bring the laws in line with what said court considers to be the needs of society.
Another area of grave concern is that the CCJ is an “executing agency” for donor funds from certain international agencies. As I have said elsewhere, this is highly inappropriate. It does not help us to view the court as being removed from the influence of others.
It certainly would be a twist of irony if the CCJ, via its judgments, activates a shift in the moral and legal environment of the Caribbean to reflect the mores of our past colonial masters from whom we are trying so hard to escape! So at least, for the time being, I am willing to stick with that which I am familiar.
S Richards
sprichards82@yahoo.com
