Letters & Opinion, The Bottom Line

The CCJ and the Court of Public Opinion — The Bottom Line!

By Earl Bousquet

Does Saint Lucia have to have a referendum to join the Caribbean Court of Justice (CCJ)?

The question follows reports that former Prime Minister Dr Kenny D. Anthony said last weekend that’s what he was told when he broached the subject with the CCJ, while in office.

It’s understandable that in a situation where Prime Minister Philip J. Pierre is Gung Ho about ensuring Saint Lucia is the next Caribbean Community (CARICOM) member-state to dump the London-based Privy Council in favour of a regional court, there will be some concern about the implications, if so, of what Dr Anthony said he was told.

It’s equally understandable that Prime Minister Anthony would have been advised one way and Prime Minister Pierre differently, since it’s a matter of interpretation of Law – and the Constitution.

In this case, we have two prime ministers with different approaches to the matter: one is a teacher of law, the other is a consummate politician — and both face the same issue at different times.

On February 1, 2022 during a House of Assembly meeting discussing the Public Finance Management Act, Dr Anthony said: “I’ve always held that once the Constitution says something on anything, just leave it alone…”

It’s crystal clear that he applied that principle the minute he was told (by whoever) that a referendum was needed to dump the Privy Council.

Obviously, Dr Anthony was convinced; and considering the chances of holding a successful referendum with a safe 66.6% vote is as easy as playing with Sno-Cones in Hell, one can easily see him just leaving-it-alone…

On the other hand, I do not see Prime Minister Pierre deciding to go Full-Speed-Ahead on the issue, like he is, if he wasn’t sure he’s being properly advised.

PM Pierre has not said how or when he plans to take the island into the CCJ, as the matter is obviously still being discussed, including during a high-profile January 27, 2022 by a top CCJ team, led by its President, Justice Adrian Saunders, for meetings with parliamentarians, judicial and legal officers and court officials.

I’m not sure who was CCJ President when Dr Anthony was so advised and whether the position communicated was a judge’s opinion or a court official’s individual point-of-view.

But what is clear is that Prime Minister Pierre and his predecessor are approaching the same matter differently, one with an eye on the Constitution, the other looking at Government as the island’s supreme elected body.

Whether this is a question of the power of a constitution imposed by a colonial power versus the power of an overwhelming people’s mandate is an issue that will definitely divide lawyers and politicians, also on the basis of differing interpretations of which is, or should be, the supreme or ultimate power in an independent and sovereign nation.

This is also ultimately a matter of whether Saint Lucia can determine its own future after 43 years of Independence, without being restrained by a legal hurdle or stumbling-block planted in its Constitution by the power supposedly ceding constitutional control to an ex-colony.

The Constitution today still allows the former colonial power to continue to exercise royal dominance over all its realms within the British Commonwealth, whether independent or a republic.

And in this case, if a referendum is the only way forward to the CCJ, it therefore allows The Crown’s inserted constitutional guarantees to delay, even prevent, a government – even with an overwhelming parliamentary majority of over-Two-Thirds of elected members — from exercising its mandate as expressed by the people’s will.

It’s for the same reason that none of the worthy recommendations from Justice Suzie d’Auvergne’s Constitutional Reform Commission can be adopted: no government wants to risk a referendum, especially given the experiences in St. Vincent & The Grenadines and Antigua & Barbuda, where referenda for constitutional change and joining the CCJ, respectively, were rejected by the majority of the minority of the electorate who voted, mainly on partisan political lines.

The lawyers in-and-around the present Government of Saint Lucia will likely have different and common interpretations and methods of approach to joining the CCJ, in which case, the ever-mindful Dr Anthony would hardly allow himself to be accused of imposing his interpretation on colleagues.

Besides, whatever the former PM’s position, the Government also has the advice of the Office of the Attorney General.

The anxiety of the CCJ itself to ultimately become the Final Appellate Court for all 14 CARICOM member-states is also a factor not to be overruled, or underestimated.

Nothing I heard from the CCJ President during the January visit suggested there were roadblocks or insurmountable barriers to Saint Lucia’s entry into the CCJ.

Justice Saunders made the legal and commonsense cases for Saint Lucia to join Barbados, Guyana and Dominica as the next CARICOM member-state to show confidence in the ability of Caribbean judges to deliver justice for Caribbean people – and better than any sitting in London.

And then there’s the sheer unaffordable cost to the Saint Lucian layman seeking justice in London, while the CCJ provides online hearings across the region.

The Government is resolute in its determination to take Saint Lucia into the CCJ and Dr Anthony’s revelation of what he’d been advised cannot be interpreted as anything but what it was: a true expression of what he’d been told.

In that sense, the former prime minister and his successor both have the same goal, only (apparently) preferring and/or pursuing different approaches.

As in all such cases, what matters most is how well the lawyers and politicians can make their case in the court of public opinion.

But whatever the case(s), a tailored and sustained public education campaign will be necessary that will also last way beyond the historic date when the CCJ becomes Saint Lucia’s highest appellate court.

And that’s the bottom line!

I rest my case…

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