By Audley Phillip
I noted with some interest the call by former Attorney General, Mr. Justin Simon, QC, for countries in the Caribbean to jointly hold a referendum on joining the Caribbean Court of Justice.
The former AG, I am sure, would be quite aware that the prospects of the Caribbean Court of Justice (CCJ) expanding its appellate jurisdiction beyond the four countries that have already signed on (Barbados, Guyana, Belize, and Dominica), anytime soon to be very slim.
The voters in Grenada as well as Antigua and Barbuda roundly rejected the proposal for it to replace the Judicial Committee of the United Kingdom Privy Council as their final appellate court just last year.
It meant that the proposal had been rejected on four separate occasions within the last 10 years by the people in three CARICOM countries.
The 2009 referendum in St Vincent & the Grenadines had embedded the CCJ issue in a new draft Constitution that the voters rejected, leaving open the question as to whether the people were against the CCJ move specifically or were not in favour of other constitutional changes with which it was packaged.
Prime Minister Keith Mitchell of Grenada, not wanting to suffer the same fate, included the CCJ proposal as one of a number of changes put to the people in 2016, allowing them to vote separately on each question. They rejected all the proposals, including that related to the CCJ. This time around Prime Minister Mitchell put the CCJ question as the sole referendum issue, as did Prime Minister Gaston Browne in Antigua & Barbuda. The voters again said no.
.Prime Minister Browne declared after the referendum last November that he had no intention of putting the issue to the people a second time. Prime Minister Mitchell is unlikely to make a third try. The bar is very high. In both countries the change requires a two-thirds majority in a referendum, an almost impossible target. For all intents and purposes, therefore, Grenada and Antigua & Barbuda are now off the table in terms of the CCJ as their final appellate court — the people having spoken.
What is significant is that both these referenda were held shortly after the governments seeking approval had been re-elected with crushing parliamentary seat majorities — 15:2 in the case of Antigua & Barbuda and 15:0 in the case of Grenada. That they were unable to persuade many of their own supporters to toe the line suggests that the results reflect more than just muscle flexing by the Opposition parties which, in both countries, urged voters to vote no.
For whatever reasons, valid or uninformed, the people in both Antigua and Barbuda and Grenada simply were not prepared to ditch the Privy Council for the CCJ. Several people at the time expressed the view, in relation to the Privy Council, “if it’s not broken, don’t bother to fix it.”
Now that Grenada and Antigua & Barbuda are out of the game, what of CARICOM is left? The Bahamas had long signalled that it had no intention of abandoning the Privy Council. Haiti and Suriname operate under the Napoleonic Code of law and so are not potential subscribers to the CCJ as a final appellate court. This leaves Jamaica, St Kitts & Nevis, St Lucia, St Vincent & the Grenadines, and Trinidad & Tobago.
The constitutional requirements for countries to join the CCJ differ. St Kitts & Nevis does not require a referendum, but the enabling Bill must be approved by a two-thirds majority in the House. In St Lucia, a three-fourths majority in the House plus a simple majority in a referendum are required. However, both Dr Timothy Harris and Allen Chastanet, have made it clear that the CCJ, as their final court, is not a priority for their governments.
St Vincent & the Grenadines requires a two-thirds majority in the House as well as a two-thirds majority in a referendum. With its voters having rejected the proposal in the 2009 referendum, and with similar rejections subsequently in two other CARICOM countries, it is highly unlikely that Prime Minister Ralph Gonsalves would again try to swim against that current.
In the case of Trinidad & Tobago, no referendum is required, but an enabling Bill would need a three-fourths majority in the House and two-thirds in the Senate. In effect, it would require agreement between the Government and Opposition, neither of which has shown any enthusiasm for leaving the Privy Council.
In Jamaica’s case, no referendum is constitutionally required. An enabling Bill would need a two-thirds majority in both the House and Senate, which means that there would have to be consensus between the Government and the Opposition. Prime Minister Andrew Holness has made it clear that, although not a constitutional requirement, such a decision would have to be endorsed by the people in a referendum. There does not appear to be any plan to hold such a referendum any time soon.
The former Attorney General might be well aware that the relationship amongst the heads of CARICOM is at an all-time low with constant feud and bickering being the order of the day. CCJ might be the last thing on their minds at this time. His call might have been well intentioned and sincere but the reality is, it looks like a hopeless one…..at least in the foreseeable future.
(Audley Phillip is a veteran sales and customer service specialist having worked in the telecommunications sector for well over 25 years. He is now a freelance writer as well as a news and current affairs analyst.)