The CCJ un­der attack – ‘politi­cians in robes’

Stabroek News Sunday - - LETTERS... -

The to­tal elec­toral dev­as­ta­tion of the Demo­cratic Labour Party (DLP) and the po­lit­i­cal exit door shown to for­mer Prime Min­is­ter, Fre­un­del Stu­art, by the Bar­ba­dos elec­torate at the elec­tions last Thurs­day, is an apt and de­ci­sive an­swer to the vi­cious attack Stu­art made on the Caribbean Court of Jus­tice ear­lier in the week, when re­fer­ring to the judges deroga­to­rily as ‘politi­cians in robes.’ It is not un­usual for politi­cians to be peeved by court de­ci­sions. Guyanese politi­cians have ex­pressed ‘con­cern’ about is­sues re­lat­ing to the CCJ on sev­eral oc­ca­sions in the past, in­clud­ing the recent past.

In the UK, the de­vel­oped coun­try from which we in­her­ited our laws and ju­rispru­dence, and whose prece­dents are the most in­flu­en­tial in the CCJ, judges and courts are reg­u­larly crit­i­cized, as they should be. But Stu­art did not merely crit­i­cize; he un­jus­ti­fi­ably at­tacked the CCJ for po­lit­i­cal bias and un­der­took to with­draw from the Court. Had he won the elec­tions, Bar­ba­dos’s with­drawal would have dealt a crush­ing blow to Caribbean unity and, worse, would have weak­ened Caribbean ju­rispru­dence and the rule of law in the re­gion.

The for­mer Prime Min­is­ter was an­gry be­cause the CCJ ruled against Bar­ba­dos for the sec­ond time. First it was the Shanique Myrie case. Bar­ba­dos, then in the throes of its anti-im­mi­grant bias, ex­ploited by the DLP to ob­tain its elec­toral vic­tory in 2008, had re­fused en­try to Myrie who was a Ja­maican na­tional. The CCJ ruled that the re­fusal vi­o­lated the Cari­com Treaty. Bar­ba­dos had to pay dam­ages.

On this oc­ca­sion, the elec­toral au­thor­i­ties had de­clined to reg­is­ter Com­mon­wealth ci­ti­zens who had sat­is­fied res­i­dence qual­i­fi­ca­tions. The High Court Judge ruled in favour of the ap­pli­cants and or­dered the chief elec­tion of­fi­cer to in­clude their names on the elec­toral list, after rec­og­niz­ing their right to vote at the elec­tions.

The Bar­ba­dos Court of Ap­peal only par­tially up­held the High Court rul­ing. It did not order the chief elec­tion of­fi­cer to in­clude the ap­pli­cants’ names on the list. This ob­vi­ously opened the door to their names be­ing omit­ted from the list which would have de­prived them of their right to vote.

The CCJ re­stored the High Court order that the chief elec­tion of­fi­cer in­clude the ap­pli­cants’ names by a cer­tain date, thus as­sur­ing that all Com­mon­wealth ci­ti­zens, num­ber­ing about 7,000 per­sons, that their right to vote would be pro­tected. The DLP was afraid of this con­stituency, as it turned out, rightly so. Stu­art and the DLP must have known what was com­ing. He prob­a­bly hoped that if Com­mon­wealth ci­ti­zens were not given the right to vote, he could sal­vage some elec­toral cred­i­bil­ity. Many con­stituen­cies are won or lost by a few hun­dred votes.

Stu­art’s attack had raised the fright­en­ing pos­si­bil­ity of the Bar­ba­dos Court of Ap­peal be­ing that coun­try’s fi­nal court be­cause he said that Bar­ba­dos would not re­turn to the Privy Coun­cil. Guyana has had that ex­pe­ri­ence be­tween 1970, when ap­peals to the Privy Coun­cil were abol­ished, to 2005 when Guyana and Bar­ba­dos ac­ceded to the CCJ’s ap­pel­late ju­ris­dic­tion. The num­ber of de­ci­sions of our Court of Ap­peal and the Bar­ba­dos Court of Ap­peal which have been re­versed by the CCJ since 2005, demon­strates that the qual­ity of our ju­rispru­dence is be­ing con­tin­u­ally en­hanced and up­lifted by the pres­ence of the CCJ as a fi­nal court of ap­peal. De­spite this clear ad­van­tage, the great ben­e­fit to our judges and

Tc­i­t­i­zens, and the sub­stan­tially re­duced cost of ap­peals to the CCJ as op­posed to the Privy Coun­cil, it is ex­tremely dis­ap­point­ing that voices such as Stu­art’s are be­ing heard. The late Er­rol Bar­row, one of the Caribbean’s great re­gion­al­ists, and a for­mer DLP Prime Min­is­ter, must be turn­ing in his grave.

There is the much more trou­ble­some is­sue of the strug­gle for ju­di­cial in­de­pen­dence in many coun­tries. Even in large coun­tries that broadly up­hold demo­cratic prin­ci­ples, such as free and fair elec­tions, there have been com­plaints about in­ter­fer­ence in the ju­di­ciary. Malaysia is an ex­am­ple. The elec­torate has re­cently voted out the gov­ern­ment of a party that has been in power for over fifty years. Yet, there have been com­plaints that gov­ern­ments have con­trolled the ju­di­ciary. If large coun­tries have this prob­lem, what about coun­tries like Bar­ba­dos and Guyana, where ev­ery­body knows ev­ery­body else, par­tic­u­larly the elites in the ex­ec­u­tive and ju­di­ciary. In these coun­tries, it is easy for the ex­ec­u­tive to feel po­lit­i­cally be­trayed by a ju­di­ciary. Hence Stu­art lash­ing out at the CCJ. he is­sue of im­mi­gra­tion in Bar­ba­dos was in­dis­sol­ubly linked to the elec­toral strat­egy of the DLP. In 2008 it came to power in a sur­prise de­feat of the Bar­ba­dos Labour Party (BLP), then led by out­ward look­ing re­gion­al­ist, Owen Arthur, when the econ­omy was thriv­ing. The DLP had played the ‘im­mi­gra­tion card,’ sus­pected to be di­rected against Guyanese. Part of the BLP’s strat­egy in re­vers­ing a de­clin­ing econ­omy had been to en­cour­age in­vest­ment in in­for­ma­tion tech­nol­ogy which re­sulted in an in­flux of In­dian busi­ness peo­ple. The DLP’s con­tin­u­ing in­su­lar­ity and the dis­tanc­ing of it­self from Cari­com in­te­gra­tion, which would have meant freer im­mi­gra­tion, worked again in 2013. The DLP there­fore had a vested in­ter­est in pre­vent­ing Com­mon­wealth ci­ti­zens, many of them Guyanese, from vot­ing. It did not suc­ceed and di­rected its fury to the CCJ.

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