By *Jomo Thomas
(Plain Talk, July 27, 2018)
The absolute worst argument tabled to date about St. Vincent accepting the Caribbean Court of Justice (CCJ) as its final court is that our own Adrian Saunders is currently the president. This argument is so devoid of merit that we need not spend time debating. All we will say is that nationalism is a dangerous snare from which we should stay clear.
The people of St. Vincent and the Grenadines, especially its politicians, should offer tangible support to Adrian Saunders’ presidency by making the CCJ our country’s final court, not because he is a Vincentian, but because he is one of our finest sons. Adrian Saunders and the CCJ should be supported because all its judges are possessed of the necessary independence of mind, training, scholarship, honesty, discipline, commitment to the rule of law and due process, transparency, democracy and open government, human rights and the protection of minority rights.
The judges on the court are equally committed to protect all of us from the tyranny of the majority.
There is not a shred of evidence to the contrary. We should support the court because its judges are qualified to do the job that judges do: listen to arguments, read and understand the cases presented in support of the respective positions and render decisions without fear or favour.
Judges are human beings. They make mistakes. All judges, including those who sit on the British Privy Council, are liable to be influenced by their origins, upbringing, education, friends, class, status, philosophical outlook and training. Most judges are honest and try their very best to ensure that all of the above influences are minimized as they listen to cases and pass judgment. But make no mistake about it, judges are not bots. They sometimes get things wrong. It is part of the human condition. We have not yet arrives at God status.
There is no getting away from the fact that people have misgivings about the state of justice in our Caribbean. But the Caribbean is not unique in this regard. Take the current debate taking place in the United States around who should sit on the Supreme Court. Apart from the issue of influence of lobbyist of law making and judicial decisions is the vexed question of the philosophical and jurisprudential moorings of the justices. Some are more supportive of the power of big business and less protective of individual rights and freedoms, but no one in the United States calls for a substitution of British, European, or Caribbean judges or courts in place of their own.
The cry that justice has two faces is universal. We cannot get away from the fact that access to justice is conditioned on how much money you have and, indeed, who you know. In St. Vincent, across our region and, indeed, the world, the poor have a persistent cry relating to abuses and exploitation, especially by lawyers.
The horror stories here are too numerous to detail. But these sad tales should not stop us from adopting the CCJ as our final court. Our people must not let the rich and privileged who could afford the expenses of travel to Britain to throw dust in their face on this matter. In most cases our people may not even have cases that reach the CCJ. More than 85 per cent of our legal matters are decided in the magistrate courts. Therefore, in the same way we cannot blame the Privy Council for whatever perceived injustice that is meted out to us here, it’s the same way we cannot use those as an argument against the CCJ.
The same argument holds true for cases that go to the High Court or even the Court of Appeal. At least we can get to our appeal court, which comes to SVG at least three times per year. With the Privy Council, the matter is completely different. In the last 30 years, only 21 cases from St. Vincent went to the Privy Council in England. That’s a ratio of less than one case per year. Of the 12 cases that were paid for by citizens, our Court of Appeal was overturned four times. This means that the Privy Council decided that our court, the same court that we love to hate, was correct on 67 per cent of the time.
Apart from the fact that our Court of Appeal has been found by the Privy Council to make good law and arrived at the correct decision at a very high rate, is the issue of remoteness of the Privy Council. The council, located eight hours’ flying time away, affects access. The exorbitant cost, which can run into the hundreds of thousands of dollars, takes the Privy Council out of the reach of the vast majority of citizens.
Contrast this reality with what we saw recently when the CCJ met on a Sunday, where the judges sat in Trinidad and the litigant and his attorneys in Barbados, dealt a major blow against a government in affirming the rights of Caribbean citizens, who met the residency criteria to vote.
Let the truth be told. The CCJ will not solve all of our legal problems. Justice Saunders is on record lamenting the sad state of our judicial system, particularly as it relates to access to justice. We have a long way to go, but none of our problems should prevent us from acceding to the appellate jurisdiction of the CCJ.
Plain Talk has long supported a home grown Caribbean court. At the most basic level, to claim independence and argue that your final court must reside in a foreign country, thousands of miles away, is to assume or conclude that those men or women are mentally superior to our judges in our Caribbean.
Like Errol Barrow, the former Barbadian Prime Minister said none of us should be found loitering on colonial premises past closing time. It’s time for our own.
*Jomo Thomas is a lawyer, journalist and international affairs specialist. He is a former senator and is now speaker in the national assembly of St. Vincent and the Grenadines.
The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected].
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Well argued Mr Thomas. I really do not understand why we still have people who do not want to have our own judges as a final court of appeal.
Just one error though. It is not “Caribbean “ citizens who have the right to vote once the residence requirement is met. It is “Commonwealth” citizens. This is a longstanding Commonwealth agreement, so all the Caribbean Commonwealth countries, as well non-British ex-colonies that have joined the Commonwealth, are part of that agreement. Haiti, for example, a Caribbean country but not a Commonwealth country, is not a party to the agreement; but Mozambique, which is neither Caribbean nor even a former British colony, is.
I only have to deal with your final issue to highlight your specious reasoning: “Like Errol Barrow, the former Barbadian Prime Minister said none of us should be found loitering on colonial premises past closing time. It’s time for our own.”
Our entire legal system, including the police, the lawyers, and the courts at every level are “colonial premises” not only in body but in spirit. We have English common law and we have a Westminster Constitution and system of governance.
All these British institutions served us well even during the colonial era when our very own black and mulatto elites supported limited adult sufferage and cursed the day the masses got the vote.
And it was these very same colonial institutions and their premises which gave us the legal and moral basis for achieving independence.
The masses whose spirit was unleashed by adult sufferage and whose latent power the nouveau elites still fear in the same way the old elites feared it are opposed to severing the last important formal tie we have to our former colonial masters — the Privy Council — only to be shackled to the Caribbean Court of Justice by homegrown post-colonial masters masquerading as our saviors.
At the heart of this issue is trust: you, Mr. Thomas, and your peers and colleagues from the bottom to the top of juridical system do not deserve our trust.
You said all that needs saying when when you claimed, “There is no getting away from the fact that people have misgivings about the state of justice in our Caribbean…. In St. Vincent, across our region and, indeed, the world, the poor have a persistent cry relating to abuses and exploitation, especially by lawyers…. The horror stories here are too numerous to detail.”
What you failed to say is that in our tiny Caribbean civilization every member of the legal fraternity — from top to bottom — sucks from the same juridical bubbie. The CCJ is simply at the apex of a system that deserves neither the trust nor respect of ordinary people.
As for your claim that, “all its [CCJ] judges are possessed of the necessary independence of mind, training, scholarship, honesty, discipline, commitment to the rule of law and due process, transparency, democracy and open government, human rights and the protection of minority rights,” this is simply an opinion that flies in the face of the tardy and dysfunctional dispensation of justice throughout the CARICOM region.
jomo your so full of it did papa tell you what to say.
Two contrasting perspectives that deserve the same merit. I think C.Ben’s argument may have tip the hat ,that is the issue is one of trust.Lastly, I also agree with Ben that all of the lawyers suck from the same breast (went to the same institutions ), thus they tend to think alike.That is the very reasons why if you were to read the decisions of the CCJ, they were no opposing voices, they all concur.How can that be? This is a legal phenomenon.