The Jeff Cumberbatch Column – The Rule of Law and the CCJ

Caribbean Court of Justice

One of the earliest formulations of the concept of the rule of law is to the effect that “the king himself ought to be subject to God and the law because the law makes him king…” Later scholars such as Coke also asserted the supremacy of law over the pretensions of the executive, and AV Dicey, who is popularly credited as being the father of the modern concept noted that the Rule of law, in the second principle, means “the equality of law or equal subjection of all classes of people to the ordinary law of the land which is administered by the ordinary law courts”. In this sense, the rule of law conveys that no man is above the law. Even the Government officials are under a duty to obey the same law.

Contrasting pronouncements during the past week by two leading regional government officials to, in one case, a ruling by the Caribbean Court of Justice and, in the second case, to some obiter dicta [observations not of crucial importance to the decision] in a number of its judgments, illustrate neatly the extent to which some administrations are prepared to abide with this aspect of concept of the rule of law.

The Caribbean Court of Justice [CCJ], a creature of the regional integration movement, has had, in its relatively short existence, to endure the peculiar ambivalence, dither and mutual mistrust of the regional states towards their own created institutions. The Federation may be justifiably cited in this connection as indeed may now the regional court.

Conceived of as encompassing both an original and an appellate jurisdiction; the latter as the region’s highest court to replace the Judicial Committee of Her Majesty’s Privy Council, the court has striven over the past twelve years essentially to limp along on the good leg of its original jurisdiction only, while, to date, no more than four jurisdictions have seen it fit to exercise their discretion to accede to the appellate jurisdiction. A cynic might reasonably be minded observe that the original jurisdiction is fully subscribed only because it is an inextricable incident of the Revised Treaty of Chaguaramas, to which all the member states of CARICOM are signatories, and not because of any overarching desire on the part of these states to have the court arbitrate their trade disputes.

So far as concerns the appellate jurisdiction, however, the position is markedly different and here, owing to a veritable “sancoche” of distrust of the capacity of a regional body effectively and judiciously to resolve private legal disputes in one jurisdiction, an outright popular rejection possibly based on partisan considerations in another, the lack of enthusiasm for resolving the matter by popular referendum in yet another and by virtue of judicial decision in a fourth, the court has enjoyed less than majority support from the regional states.

I am not certain to what extent this general air of disfavour might have influenced the recently announced stance of the governing administration in Belize to subject to parliamentary debate and resolution by conscience rather than party whip, a recent ruling of the Court for that government to honour a multi-million dollar international arbitration award.

While this initiative might, on its face, smack of a clear contempt of the ruling by the CCJ, the Prime Minister has sought to justify it on the technical ground that it is not constitutionally permissible for money to be withdrawn from the Consolidated Fund without Parliamentary resolution. Although this argument may be legally sound, the absence of any enthusiasm by the governing administration for propelling the vote in a direction consistent with the ruling appears to demonstrate a reluctance to comply therewith. The consequences of this have not gone unnoticed by the private sector in that state. In a report published in the Barbados Advocate last week, the president of the Belize Chamber of Commerce warned, “When you have a government or a country that has not paid its debt… the borrowing rate [on the international market] becomes a higher rate… the business community will pay that price…”

More in the region of fair comment and far less combative was the reaction of the Right Honourable Prime Minister, Mr Freundel Stuart, Prime Minister of Barbados, in his response to the not infrequent criticisms of the CCJ pertaining to the tardiness of the local court system and its consequence of infringing the fundamental rights of litigants. Terming these criticisms an “unnecessary slander” of the Barbados judicial system, Mr Stuart sought to argue that such delays were not peculiar to Barbados but were of regional incidence and contrasted the comparatively less salacious handling of the matter by the JCPC which remains the highest tribunal for most of the regional jurisdictions.

It is indeed difficult to defend a cogent charge of judicial tardiness and the Prime Minister’s justification that it also happens elsewhere would not, as he well knows, suffice to absolve an accused from guilt of an offence or a defendant from liability for a civil wrong.

Mr Stuart is, understandably, clearly nettled by the CCJ’s adverse comments concerning the nation’s court system. Given that a significant part of that delay is owed to adjournments caused by the unavailability of counsel in the matter, Mr Stuart and his learned Attorney General may thus find some assistance in a recent decision of the High Court in England.

In Bates v Post Office, when a date for the first case management conference was ordered, the clerks to leading counsel for the claimants advised that they could not attend on that date. The judge then informed the parties that a formal application to move the date would be required but this was not done and the judge consequently refused to change the date. At the conference, a substantive hearing was scheduled for a date in November 2018. This time, leading counsel for the defendant advised that he was unable to make that date because of a prior commitment in the Chancery Division, and both parties requested that the date be moved into 2019. Fraser J refused the application observing, “Fixing hearings around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach.” He further remarked wryly that fixing hearings around the availability of counsel “has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity…

Indeed, a reading of the entire decision would repay study.

110 comments

  • Ok, Rush Limbaugh strikes again, keeps his 99.7 % record.

    Last Friday he outed Brian Ross hours before Ross got outed!!!

    When a man good he good!!!!

    Like

  • @Sergeant again you may be quite right….but, there is always a BUT…note that the repub Senate reelection committee did NOT reengage with Moore.

    The senate leader is already in that Bannon crosshairs so it will be realy interesting to see how this plays. The Dems kicked Franken hard to the kirb so too Conyers. Rightly so.

    And House Repubs have also fallen becauxd of their badly wielded swords so it will be very intresting to see what is done if Moore wins.

    Every other high profile male who has been accused with credible evidence has been dismissed, retired or gone into rehab never to return…well, except the Pres. Moore would make it two such men…

    Now both allegedly are conservative Repubs so it seems one can say that conservatives don’t worry about your character too much as long as you will vote against abortion and for limited govt.

    Or as one of them said if the adult Joseph the carpenter can get to know the teenage Mary why can’t an adult Moore do the same with his teenage interest.

    And as you know Moore is a man who would lustily say Merry Christmas NOT Happy Holidays!!!

    In God they trust…So they say.

    Like

  • Any Republican who votes to unseat him will be subject to primary challenges
    +++++++++++++++++++++++++++

    Bingo!!

    Toast

    Like

  • Bush Tea December 11, 2017 at 8:11 AM #
    Only a complete idiot can fail to recognise that social media is the future of news,
    ++++++++++++++++++++++++++++++

    Bronte

    Only a complete idiot can fail to realise that many social media accounts are fake!!!

    Reporters at Media Houses are idiots and are basically lazy!!

    The Fake News they get from social media comes from fakes!!

    Trump is ahead of the curve again!!

    As they become less and less believable their owners become more and more concerned about their viability!!

    So, what’s going to happen in the future?

    Are the Media Houses going to disappear leaving a lot of imaginary people to read the “news”?

    I don’t think so!!!!!!

    The Media House owners will clamp down on what their Houses can and can’t use!!!

    Sexual harassment is an easy clean way of throwing deficient employees under the bus without damaging the image of your House!!

    http://edition.cnn.com/2012/08/02/tech/social-media/facebook-fake-accounts/index.html

    https://www.forbes.com/sites/forbesagencycouncil/2017/11/16/social-engineering-through-social-media-from-fake-profiles-to-russian-meddling/#4be6db40d3ef

    Like

  • Well Well & Cut N' Paste At Your Service

    Moore has to be reined in, him and his fellow pedophile and sexual predator trump the orange turd have plans to reverse the amendments to the constitution from after the 10th Amendment….that has always been the plan.

    They however have not taken into consideration because they are both too dumb, racist and evil to recognize it , that the US will be burnt to the ground before they can start the process and stay burning for decades, the poverty they are trying to fight by reinstituting slavery will see all of them turned to paupers……300 years of theft and prosperity for racists and white supremacists will be reduced to cinders and poverty within months….that is the plan, they just dont know it yet.

    …… in the meantime GP will be one of the first Black men in Miami to be lynched by racists because he will still believe he is one of them…and he will be made an example of, brutally so.

    ..boasting about being a scholar, does not mean you have any commonsense.

    Like

  • Bronte

    Try this one instead!!

    “Only a complete idiot can fail to recognise that social media is the ORIGIN of FAKE news”

    Like

  • Totally lacking perspective and any basic common sense, as usual.

    Social media does generate many concocted stories that go viral real fast, but the phenomenon has ALSO been responsible for some of the the most compelling, significant TRUE stories in the last several years.

    BU and David offer excellent examples of that here in Bim and the Philando Castile video being perhaps the most notoriously powerful example generally.

    It is ridiculous to look only at its negatives …but actually , take that back, it’s par for course with this John correspondent.

    It is absolutely hilarious to read him express about fake news in his daily ‘dissertations’ of totally fake analysis…

    Like

  • @Dee Wor

    It is a human condition to focus on the negative. It takes emotional intelligence and acute self awareness to view issues from a 360 perspective.

    Like

  • Well Well @ Cut and Paste @ Your Service

    had not for social media, there is no telling what else these evil, racist, child rapists, sexual predator demons would have gotten away with for another 400 years.

    Like

  • The many delays of the local courts are a symptom of a local disease called the unholy quadrangle of the Caribbean, consisting of zero work ethic, arrogance, retardedness and nepotism. What can we expect of a Chief Justice putting “family and live” above the common good? He and his fellows are a national disgrace. Surely, Marston Gibson will blame colonialism, weather and his mother for his rotten attitude. Never responsible for his failure, but blaming others. That is so typical for the local elite.

    Every foreign investor is advised to implement some arbitration clause into his investment contract. Otherwise he might end at the next rum shop.

    And why do we need a Supreme Court at all? For some dispute amongst the local legal fraternity, when they fight like dogs about some silly fees and VAT? Pardon me.

    Like

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