CONSTITUTIONAL COMMISSION REPORT.
THE Constitutional Reform Commission has said that the Caribbean Court of Justice (CCJ) should replace the British Privy Council as St Lucia’s final court of appeal and that provision should be entrenched in a new Constitution, so that it is afforded similar protection as the Eastern Caribbean Supreme Court in the domestic legal system.
Today, we conclude a two-part article on the Commission’s deliberations and recommendations on the CCJ.
The Commission recalled its previous discussions on the judiciary in Saint Lucia and its examination of the relative success of the ECSC. It noted that to a large extent, the CCJ was a court very similar in design and structure to the ECSC. The Commission recognised for example that, like the ECSC, the CCJ was a regional court, constituted in common for several states at once. It recognised that the system of appointment of judges to the CCJ were identical in most respects to the system of appointment of judges to the ECSC. The Commission noted that, with the exception of the selection of the Chief Justice of the CCJ, governments of the region played no role whatsoever in the appointment and selection of judges to that court. The Commission acknowledged that this was peculiar to the court and unique in the world.
The Commission also recalled the high level of independence and the demonstrated intellectual capacity of the judges on the ECSC over the years. It recognised the competence of the persons appointed to the court, and recalled that a very high number of decisions by the Court of Appeal were approved by the PC. The Commission acknowledged that in Saint Lucia’s case alone, it had produced several distinguished and eminent jurists who had served on the ECSC. The Commission specifically recalled the example of the late, Rt. Honourable Sir Vincent Floissac Q.C., among others, and took notice of the fact that Sir Vincent had been called upon to serve on the PC at points in his illustrious legal career; that in fact Sir Vincent had written lead judgments for the Judicial Committee on occasions.
The Commission therefore believed that the argument that the region did not produce jurists of sufficient intellectual, moral and legal capacity to perform the functions of a judge on a final appellate court like the CCJ, was easily dispensed with and could be rejected outright.
As regards the decision of the PC itself in the Jamaican case, (see above,) the Commission here too, rejected the arguments advanced for several reasons. Firstly, the Commission took cognisance of the fact that the PC was not entrenched in the Jamaican Constitution.86 Accordingly, the suggestion by their Lordships that a court created to replace the PC had to be strongly entrenched in the Jamaican Constitution was illogical.87 Put in other terms, the Commission recognised an incongruity in the PC’s suggestion that, while it was not entrenched in the Jamaican Constitution, any court created to replace it had to be entrenched. While the Commission agreed that entrenchment was probably very desirable, it could not understand the suggestion by the PC that only a court entrenched in the Jamaican Constitution could provide the same quality of justice previously supplied by the un-entrenched PC.
Secondly, the PC argued that the CCJ needed to be entrenched due to the apparently small risk (described as “fanciful” by their Lordships,) that the governments signing the agreement establishing the Court, could amend the agreement and thereby weaken the protection afforded to the judges who sat on the court. The Commission was unable to regard this as a material concern, as the Commission took special note of the fact that amendments to the agreement establishing the Court, required unanimous approval of all the governments that were signatories to the agreement. In the Commission’s view, this fact converted any risk of possible amendments to the Treaty establishing the Court from “fanciful” to near impossible, as the Commission was unable to anticipate what circumstances could arise which could possibly prompt twelve sovereign governments to unanimously agree to undermine the independence of the CCJ.
In any event, the Commission recognised that the Jamaican case turned on the question, not of the desirability of the CCJ as a replacement for the PC, but the method and means by which the Jamaican Government had attempted to replace the PC with the court. In other words, the Commission acknowledged that the important lesson of the Jamaican decision was that it was critically important for the correct procedure, outlined in Saint Lucia’s Constitution for the abolition of appeals to the PC, to be followed. In the case of Jamaica, the government attempted to abolish appeals to the PC and replace it with the CCJ, but did not take any special measures to entrench the court in the domestic legal system. It also attempted to achieve this without a referendum on the issue.
In the case of Saint Lucia, it is unclear whether a referendum would be required to abolish appeals to the PC and replace that court with the CCJ. The Commission’s attention was drawn to a body of thought which took the view that no referendum might be required in the case where Saint Lucia seeks to establish a regional court in common with other states in the OECS, to replace the PC. If correct, the implication is that it might be possible for Saint Lucia to accede to the appellate jurisdiction of the CCJ without the need to deeply entrench the CCJ in Saint Lucia’s domestic legal system.
Notwithstanding, the Commission believes that, irrespective of the actual procedure contained in our Constitution for abolishing appeals to the PC, the CCJ should be afforded appropriate protection in a new Constitution and should be entrenched in order to promote confidence in the court and to ensure that the CCJ is afforded no less protection than the ECSC.
However, perhaps the most important reason for the Commission’s support of the court, is that the Commission regards breaking ties with the PC as an important last step in completing Saint Lucia’s journey of independence. The Commission considered the mandate entrusted to it by the Parliament of Saint Lucia, and agreed that Saint Lucia had reached a stage in its development, where it could take full ownership and responsibility for its judicial policy and affairs. While the Commission took notice of the critical role played by the PC in the past in the development of Saint Lucian and regional law, the Commission was convinced that, in the context of the current review, a commitment needed to be made to complete Saint Lucia’s growth as a civilization in its own right, and that the umbilical ties to the former colonial motherland needed to be broken. The Commission regarded it as incompatible with the status of independence that the interpretation of Saint Lucia’s laws should be done for it by a foreign power, on foreign soil. The Commission believed that Saint Lucia, in tandem with other OECS states, had demonstrated its judicial maturity and integrity since it gained independence, and could sever ties with Britain with confidence. As such, for all reasons discussed above, the Commission recommends the replacement of the Judicial Committee of the Privy Council with the CCJ as Saint Lucia’s final court of appeal and the entrenchment of the CCJ in the domestic legal system.
Recommendations
With respect to the Caribbean Court of Justice, the Commission recommends the following:
(154) It should replace the Privy Council as Saint Lucia’s final appellate court;
(155) It should be entrenched in a new Constitution, so that it is afforded similar protection as the ECSC in the domestic legal system.