Caribbean Court of Justice in Port of Spain. [photo: Debbie Ransome]
[This is an excerpt from an article in The Round Table: The Commonwealth Journal of International Affairs and Policy Studies.]
In the absence of tangible evidence, assertions regarding the purported deficiency in investor confidence in the Caribbean Court of Justice (CCJ) lack empirical support, particularly considering the inapplicability of the CCJ to investment disputes per se, and the potential movement of investor-specific disputes towards international tribunals such as the ICSID (International Centre for Settlement of Investment Disputes), which are tailored to address their concerns (Haynes & Hippolyte, Citation2023). Chastanet’s position was reflective of the critics during the 2011 Saint Lucia Constitutional Reform Commission Report, and similarly problematic because his assessment of judicial impartiality, effectiveness and maturity is rooted solely in the opinion of ‘foreign investors’, as opposed to an assessment of the historical judicial acumen of the CCJ and surveying the judgments and assessment of litigants, lawyers, CARICOM (Caribbean Community) countries and the majority of individuals who interact with the CCJ.
The remaining contentions lack substantive foundation, particularly when considering the depoliticised procedures utilised in the appointment of judges via the RJLSC (Regional Judicial and Legal Services Commission). While other judges are appointed directly by politicians, thereby increasing the likelihood of political interference and lack of impartiality, the RJLSC is formed out of members of the OECS (Organisation of Eastern Caribbean States) Bar Association, Organisation of the Commonwealth Bar Association, Judges from the Judicial Services Commissions across the Caribbean, Individuals from the Public Service Commissions, Civil Society Organisations and Deans of the Faculties of Law across the Caribbean region (Remy, Citation2014; Pollard, Citation2004; Rawlins, Citation2000, Derek; O’Brien & Foadi, Citation2008; Rawlins et al., Citation2000; Simmons, Citation2005). Further, while the President is selected by the Commission and appointed by at least three-quarters of the Heads of Government, they can only accept or reject the nomination but cannot determine who the nominee should be.
Conversely, the procedural mechanisms employed for the removal of the President and Judges mitigate the likelihood of political interference as per Article IV of the CCJ Agreement (CCJ Agreement, Citation2021). This process includes, inter alia, (i) Heads of Government determining if the question of removal should be investigated, (ii) if so, the matter is referred by the Heads of Government to a tribunal that investigates and reports to the RJLSC, which will make a decision, following which (iii) a qualified majority of three-quarters of the contracting parties would vote to remove the President. The principal distinction between the President and Judges is that cases concerning the latter will be determined by the RJLSC as opposed to the Heads of Government, by a majority vote (CCJ Agreement, Citation2021). Further, it is not permissible for the salaries and allowances that are paid to the President and Judges to be altered to their disadvantage during their tenure in office (CCJ Agreement, Citation2021). These processes thereby, as far as is practicable, have reduced the scope for political interference in the delivery of justice by the CCJ (Remy, Citation2014).
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Further, scholars such as Remy have noted that despite fears at the time the court was set up, judges have managed to exude integrity, high quality and impartiality, and people do not have negative perceptions concerning the judges and the delivery of justice. They have shown that they are free from political interference, especially in small states, and have stayed well above the fray and free from scandal (Remy, Citation2014). Further, the view that justice must be impartial, which was raised by the Opposition, is valid, but the interpretation of impartial justice as being at odds with cultural nuances, norms and values is short-sighted, as justice must always be inclusive of these principles in order to reflect the society in which it operates (Antoine, Citation2008).
Conclusion
Saint Lucia’s accession to the CCJ was a lengthened and protracted process marked by distinct historical periods, which have been explored in this paper. However, some key observations and lessons from Saint Lucia’s accession include, inter alia, that in circumstances where constitutional referenda are non-mandatory within the Commonwealth Caribbean, governments attempting to engage in constitutional amendments and broader reform must ensure that they embark upon broad-based and comprehensive public education. They should also utilise technology and work assiduously to garner support from opposition voices, particularly the parliamentary Opposition, through inclusion in transition committees and comprehensive public education, which can address some of the concerns about the process and wider reform. In lieu of a referendum, governments must ensure that the body politic is sufficiently aware of the constitutional developments, recognising that they (the people) will be the beneficiaries of the constitutional amendment.
Further, such actions will also provide avenues for the reduction of the partisan rhetoric surrounding controversial reforms. On a broader note, countries like Saint Lucia have demonstrated that there must be an ongoing bi-partisan process and agenda of constitutional reform, embedded within the governance structure that transcends the five-year electoral cycle and is rooted in the praxis of decolonisation in order to create an informed citizenry. In the end, amidst the protests, and a rejected application for injunction filed by a private citizen arguing that the process employed by parliament was unconstitutional, the Parliament passed the Bill permitting appeals to the CCJ (Editorma, Citation2023). Saint Lucians can now access the CCJ in its appellate jurisdiction; the first case heard under this reform was McDowall Broadcasting Corporation Limited v. Guy Eardley Joseph (2023). The twenty-six-year-old process, however, was marked by significant historical moments encompassing the Constitutional Reform Commission, Attorney General’s Reference and the 2021 electoral victory by the SLP, which concluded the process. All of these moments have contributed towards Saint Lucia’s journey to the CCJ.
Rahym R. Augustin-Joseph is a Student of Politics and Law, University of the West Indies, St Michael, Barbados.
