Caribupdate Weekly, Editorial
July 24, 2014: – It’s official and it will be historic! February 10, 2015, is Referendum Day in Grenada. Minister of Legal Affairs Hon. Elvin Nimrod made the announcement last week after the Advisory Committee on Constitutional Reform, headed by Dr Francis Alexis, handed in its report and recommendations to Cabinet.
Never before in post-independence Grenada – or even before our 1974 independence – has the voting population been called upon to approve or ratify changes to our Constitution.
The Constitution, which represents the supreme law of the land, lays down its own procedures for changes to its entrenched provisions. Pursuant to Section 39, apart from parliamentary approval, the wider approval of the voting population is required. The same persons eligible to vote in a general election are the same persons eligible to vote in a Referendum.
To pass the test, two-thirds – or 67 out of every 100 persons voting – must vote ‘yes’ to the proposed change.
Topping the list of recommendations from the Advisory Committee is the replacement of the London-based Privy Council with the appellate Jurisdiction of the Caribbean Court of Justice (CCJ).
In February 2001 – more than 13 years ago – several CARICOM states signed the Agreement establishing the CCJ. Just over four years later, in April 2005, the court was inaugurated during an impressive ceremony in Port of Spain where it is headquartered.
The court comprises two jurisdictions: an original jurisdiction and an appellate jurisdiction.
In its original jurisdiction, the CCJ functions as an international tribunal, focusing on trade and other disputes falling under the Revised Treaty of Chaguaramas.
In its appellate jurisdiction, the court sits as a final court of appeal for individual member states – matters, therefore, have to pass through the local courts before getting to the final appellate stage.
All CARICOM member states, including Grenada, are part of the original jurisdiction of the CCJ. Not so with the appellate jurisdiction. So far only Guyana, Barbados and more recently Belize, are part of the appellate jurisdiction. The other states still retain the Privy Council as their final appeal court.
Dominica is on the verge of joining the appellate jurisdiction of the CCJ, already securing the requisite votes at the first round of voting at the parliamentary approval stage. St Lucia is making preparations to follow suit.
It is significant to note that none of the three current members of the appellate jurisdiction (Guyana, Barbados and Belize) required a referendum to secure the direct approval of the voting population. Only parliamentary approval was required.
Similarly, neither Dominica nor St Lucia, will be requiring a referendum vote based on the route chosen to access the CCJ. Access therefore will be much easier than Grenada.
Recent consultations on constitutional reform in Grenada have heightened the CCJ vs. Privy Council debate. Those batting for the Privy Council cite concerns of political interference in the workings of the court. They feel the Privy Council will give a better deal with fairness and justice, being so far removed from the politics of the region.
They also cite concerns of financial independence, given that several Caribbean governments are well-known for not paying their annual dues to several regional institutions, including the University of the West Indies, thereby creating serious financial and other strains on citizens who access those institutions.
The justice system is too important, Privy Council advocates argue, to subject it to the uncertainties and whims and fancies of ‘bad-pay’ Governments. On top of all of that, access to the Privy Council remains ‘free’ to us in the region, they further claim; governments do not have to pay a cent to finance its operations.
On the other side of the debate, those batting for the CCJ have rebutted the contentions of the naysayers with powerful and compelling arguments.
They counter that the CCJ is well insulated from political interference by a Regional & Judicial Services Commission (RJLSC) that is solely responsible for the appointment of judges. No politician is involved in the appointment, discipline or removal of judges.
As for financial independence, the Governments of the region have paid upfront for the CCJ, setting up a trust fund of US$100 Million since inception. The interest alone from the trust fund meets the operational requirements of the court. In fact, many other countries in the world have applauded the concept and are seeking to implement similar ‘trust fund’ models.
So, in essence, we are paying for the CCJ and not fully utilizing it. As has been made clear during the recent consultations, Grenada would have to put out no further monies to join the appellate jurisdiction of the CCJ.
Add to the mix, the sheer expense of accessing the Privy Council to the average Grenada and Caribbean citizen.
The list of compelling arguments in support of moving to the CCJ includes: the clear signals from London that the Privy Council is a burden on the British taxpayer and a strain on the justice system, with the British Court of Appeal judges spending a disproportionate amount of time with Privy Council cases; the relative ease of access to the CCJ, including by way of videoconference; and the undisputed intellectual capacity and competence of our judges in the region to dispense justice.
Are we waiting on the Privy Council to kick us out before we face reality? After 40 years of independence, should we depending on a court far removed, thousands of miles away, to render final decisions when we have our own competent court – which we are paying for! – in our own backyard?
The Grenadian public needs to be informed and sensitized on all the relevant issues as we approach Referendum Day 2015. Without their ‘yes’ vote, access to the appellate jurisdiction of the CCJ will remain a dream.
The public education must intensify. Politicians, lawyers, religious and NGO leaders must place squarely in the public domain all the compelling arguments for joining the CCJ. The time is NOW!
