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