It must rank as an extraordinary moment in the short, checkered history of the Caribbean Court of Justice (CCJ). Visibly exasperated, the normally poised President, Justice Adrian Saunders interjected during last Monday’s post judgement hearing.
“No. No. We are not imposing anything,” he rebuked the lawyer for the Guyana Elections Commission (GECOM), Stanley Marcus during an exchange on what consequential orders would be appropriate in relation to Article 106 of the country’s Constitution.
“We are not involved in politics” Saunders stressed, shaking his head and gesticulating with his right hand. “Our remit is to uphold this document” as he leaned across to retrieve and hold up a multi-tagged copy of the 1980 Constitution, “and then if it has a clear provision,” looking straight ahead at the Senior Counsel and leaning forward, Saunders declared passionately, “What you want us to do? To ignore it, to reject it, to rewrite it?” Marcus replied, “No my Lord, but I ask you to give effect to what it says…”
Article 106 states in part, “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence” and “Notwithstanding its defeat, the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”
How the CCJ will give full effect to what the Constitution says without being viewed by some inevitably dissatisfied party as political in our chronically dysfunctional and crippled state, remains to be seen on July 12. This is the new date when Court will issue consequential orders having generously extended more time to the polarized pair of the beleaguered coalition Government that is holding on to power and the hungry Opposition that is forever circling, to try and agree.
The hearing came after the CCJ’s June 18 landmark judgments in consolidated cases arising from last December’s controversial close approval of the no-confidence motion (NCM) that succeeded with the single surprise crossover vote of then-AFC Member Charrandass Persaud. The Court determined that the process followed in President David Granger’s unilateral appointment of the Chairman of the Guyana Elections Commission. Justice (Retired) James Patterson was flawed and in breach of the Constitution. In the second set of cases, the CCJ determined, among other things, that the NCM was properly passed by the National Assembly. Justice Patterson resigned this week.
The Court’s President repeated that GECOM should always be in a state of readiness for elections even as he acknowledged, “We cannot direct the Parliament what to do.” He expressed noticeable disappointment that there had been no attempts among the nation’s leaders and their representatives to reach consensus between the time of the judgments and Monday’s hearing.
“These matters are of the highest constitutional significance,” Justice Saunders maintained, speaking slowly and carefully, so “It beats me that the Leader of the Opposition and the President and their respective Counsel have not met to discuss the issues that confront us.”
“Everybody says these are important issues, but it seems as though the same degree of urgency and deliberation that are expected of the Courts” are not “reflected in the behaviour of the political directorate and that I think is unfortunate. This case puts the Court in a very awkward position because we don’t want to make political decisions but at the same time, we have to see the rule of law (upheld),” the Vincentian-born judge said. He is a co-author of “Fundamentals of Caribbean Constitutional Law” written with leading legal luminaries, Jamaican Tracy Robinson and Guyanese, Dr. Arif Bulkan, who was recently elected to the United Nations Human Rights Committee.
“We feel it is our remit to see the rule of law observed in Guyana but the rule of law also requires political actors to conform with the rule of law and to demonstrate a spirit of compromise and reasonableness that allow for the rule of law to take effect,” Justice Saunders continued. Shaking his head, he pointed out, “everybody knows there has to be fresh elections, and those elections should have been in March so when is the earliest can they be held given certain amount of ‘give and take’ on each side?”
“On one hand we want as many of the qualified persons who are eligible to vote to be able to vote, that is a Constitutional value that has to be upheld. But another Constitutional value that has to be upheld is when there is a vote of (no) confidence that collapses the Government that elections should be held in three months, so we have to find some sort of compromise between these two values. We don’t want to impose a compromise that is not our remit. But it can’t be beyond the political directorate to find some compromise there,” he noted.
The CCJ is unique, being both a final appellate court for criminal and civil cases and the tribunal that resolves treaty disputes among CARICOM member states. As an appellate court, it replaces appeals to the judicial committee of the British Privy council but just four of the nations which signed the treaty establishing it in 2001, Barbados, Guyana, Belize and Dominica have made the move to have their criminal and civil appeals heard by the CCJ. It is ironic that in 1970 Jamaica had tabled a proposal for such a Court and in 1999 Trinidad and Tobago announced big plans to house the Court in its capital with its national Justice Michael de la Bastide sworn in as the first President in 2004 and the Court’s inauguration a year later.
Trinidad and Tobago contributed close to a third of the US$100 million for the supporting CCJ Trust Fund making the Court independent of Governments, loaning it US$29 million (TT$182.7 million) with the other 13 CARICOM countries making up the rest.
Just last year, then newly appointed President, Justice Saunders expressed disappointment with the reluctance of the government of Trinidad and Tobago to have the institution as its final court of appeal. He identified the need for greater public information on the Court, its purpose, processes and cases, indicating that the court was considering using social media and mass communication methods to get its message across.
“People can get a greater sense of confidence about the court and about our ability to be a protector of the rights of people and to serve the Caribbean public in promoting the rule of law and defending democratic values,” Saunders said according to media reports. “I think we need to spend more time engaging with people on a broader or grassroots level.”
“The Court actually has produced far more judgements for the four countries that are on board in the appellate jurisdiction than the Judicial Committee of the Privy Council has produced for the several other states that are still sending their final appeals to them.”
The recent open sessions on the Guyana motions were deemed important enough to be streamed live from the CCJ’s base in Port-of-Spain and included inputs from other prominent attorneys outside of Trinidad and Tobago. These were closely watched by thousands, with the court demonstrating that in terms of social media and modern technology it has certainly arrived, boasting a modern easily accessible and user-friendly website.
Comments posted by viewers during the moderated feed, ranged from, “Only the Guyana parliament can make or amend laws, not the CCJ,” to “The government is null and void!” and select quotations from the various Judges, including, “It is a little strange that the (Elections) Commission cannot be ready in 90 days.”
ID looks at Justice Jacob Wit’s quip that “We are talking about Guyana, not Utopia” and fantasizes about shared governance, racial unity, mutual respect and financial transparency in her now oil-rich birthplace.
