Tue | Aug 11, 2020

Imran Khan | Future of the CCJ hangs in the balance

Published:Tuesday | July 7, 2020 | 12:11 AMImran Khan/Guest Columnist

The Caribbean Court of Justice (CCJ) is currently deliberating on the most important non-case that it has ever had to hear. The leaders of Guyana’s main opposition, the People’s Progressive Party (PPP), have brought an appeal to the CCJ seeking to have a Guyana Court of Appeal decision overturned.

The matter is straightforward and need not detain the CCJ for all of a week. It has no jurisdiction and ought to so rule. There are some disturbing signs arising out of the seven-hour-long hearing last Wednesday, however.

From (i) the composition of the bench hearing the case (ii) the posture of the president and judges (iii) the curious insistence on exploring irrelevant “hypotheses (which the judges themselves described as “absurd”) and (iv) the emotive and preposterous pleadings of the PPP’s attorneys urging the CCJ to “pronounce” on the election results (which it has no authority whatsoever to so do), it would appear as though the CCJ is attempting to manufacturer an artificial conundrum for itself, apparently designed to grandstand and, to rely on Caribbean colloquialism, ‘pampazette’.

The dilemma that the president of the CCJ, Justice Adrian Saunders, and his colleague judges appear to be engineering is one of jurisdiction where it is settled and certain in law that it has none.

Guyana’s constitution and its CCJ Act of 2004, enshrined in law, make it clear that the Guyana Court of Appeal is the final court in matters related to “the validity of an election of a president” and “shall have exclusive jurisdiction”, which “shall be final”.

In law, the word ‘shall’ is rarely used without purposeful intent.

Notwithstanding such a definitive position, the PPP has nonetheless appealed to the CCJ. The CCJ on July 1 heard the appeal and is to rule, in the first instance, whether it has jurisdiction to pronounce on the appeal.

It is the widespread view, including of the PPP’s own lead counsel in the case, that the CCJ lacks jurisdiction. Dr Francis Alexis, the pre-eminent constitutional expert in the Caribbean, in an opinion, was absolute.

“The application for special leave to appeal to the CCJ should clearly be refused,” Dr Alexis advised.

MORE AT STAKE

Beyond the actual case, however, there is even more at stake. The very existence and future of the CCJ hang in the balance, and by extension, CARICOM and Caribbean unity are threatened. And this is at the regrettable historic juncture of Britain’s bitter withdrawal from the European Union, the US’s withdrawal from the Paris Climate Agreement and the World Health Organization, and the disintegration of LIAT. Insularity, bred by extremism and exploited by influential men of deficient judgement, is becoming a global disease that may well infect the Caribbean if the CCJ attempts to act beyond its remit.

At a time when the CCJ is actively seeking to bring more CARICOM countries into its fold, it must be cautious that it does not act in a reckless manner to estrange and disengage those that it now has within its realm.

The CCJ came into existence in 2005, and to date, only four Caribbean territories have acceded to it being their final appellate court for civil and criminal matters: Barbados, Belize, Dominica, and Guyana.

In each case, each country has reserved matters such as the one now brought by the PPP before the CCJ for their own local appellate court as the final arbiter.

Trinidad and Tobago, where the CCJ is located, still maintains the UK’s Privy Council as its final court of appeal.

The vast majority of CARICOM countries do not recognise the CCJ as their final appellate jurisdiction. The CCJ, in form and function, is eager to bring more countries into its remit, and the movement to accomplish this has made some progress.

What, in all likelihood, will obliterate that progress is if the CCJ delivers an extrajudicial ruling that ignores the constitution and laws of Guyana and the CCJ’s own founding principles and trespasses in legal territory where it has no jurisdiction.

Such action will, very likely, result in Caribbean countries eyeing deeper involvement with the CCJ, casting a cynical eye, recoiling, and withdrawing any intention to come under the CCJ umbrella.

It is not the future of the people of Guyana that is on trial at, or in the hands of, the CCJ; that matter has already been constitutionally decided to finality in Guyana. It is, in fact, the future of the CCJ itself that is on trial and in the hands of President Saunders and the CCJ justices.

The sage counsel of Reginald Armour, who also appeared before them in the case, ought to be heeded by the CCJ.

Said the learned Queen’s Counsel, “[It] is an opportunity for your Lordship (the CCJ), when you give judgement in this matter and you decline jurisdiction, that I exhort you to do, you may yet find an opportunity in your judgement to echo the wish of Justice [Winston] Anderson to ask your member sovereign states to amend the agreement to give you the jurisdiction which you now do not have.”

Over to President Saunders and his colleagues. We await their ruling to see whether they will act on principle and within the law, or go rogue and irreversibly lead the CCJ to perish. The people of Guyana will survive this; the CCJ may not.

Imran Khan is the director of public information and press secretary to the prime minister in Guyana.