“We contend that it is a disgrace that after the Caribbean Court of Justice has been in existence for so long, that only four countries have signed on to that court in its appellate jurisdiction. I do not buy the argument that there is a division of opinion in the countries that have not signed on to the court in its appellate jurisdiction, because the biggest decision that CARICOM countries have had to make has been on independence. If we’ve all decided that we want to be independent and we were able to unite the population on those issues, I cannot see why on matters relating to how our disputes are handled and how our grievances are addressed that we still believe that the former colonial master is better than people here in the Caribbean.”
To the average person, those comments made by Prime Minister Freundel Stuart are a strong plea to his fellow Caribbean Community (CARICOM) colleagues to stop finding excuses for not joining the Caribbean Court of Justice (CCJ). Any reasonable person would conclude that Mr Stuart was seeking to shame those countries into doing the responsible thing by being part of the regional court. And if this had been the case, he was right.
That those passionate words were spoken just a few months ago, at the recently held CARICOM intercessional meeting in Haiti, makes the Prime Minister’s vow on Saturday night – to garrulous applause – to quit the court should his Democratic Labour Party (DLP) retain office in Thursday’s general election all the more shocking.
Mr Stuart tried his best to explain that his last-minute decision – for this is what it was considering the fact that just two nights earlier his DLP launched its manifesto and there was no mention of this in the document – had nothing to do with the recent affirmation of local High Court decision that Commonwealth citizens resident here for three years had a constitutional and legal right to register to vote.
But any reasonable person will ask, if not that, then what? If he is not bitter about the decision, what has changed since the February CARICOM meeting?
Mr Stuart complained that the court has heard only two appeals so far this year. Was he not aware of the caseload five years ago? Three years ago? Three months ago?
He certainly could not have been complaining about financing the court, since a US$100 million trust fund established at its formation to ensure its financial viability and independence is sound. As at December 31, 2015, the last year for we could find figures, the trust fund stood at US$100.3 million, as a board of trustees charged with overseeing the fund appears to be managing the finances and investments quite well.
The Prime Minister also stressed he did not intend to return to the British Privy Council, which has made it clear it wants to get rid of the independent Caribbean and other Commonwealth countries that continue to turn to it to settle their cases.
No one was more emphatic than the then president, Lord Phillips of Worth Matravers, who was quoted by the Financial Times as saying that “in an ideal world Commonwealth countries, including those in the Caribbean, “would stop using the Privy Council and set up their own final courts of appeal instead”. The Privy Council, by the way, heard 45 cases from April 1, 2016 to March 31, 2017.
If we quit the CCJ and can’t, or won’t return to the Privy Council, where does this leave us? With a third court here, manned by judges appointed by Mr Stuart, and who will do his every bidding?
We see how this works in Venezuela, where the supreme court was packed with political cronies of the administration after the government amended the law that regulates the court to increase the number of sitting judges from 20 to 32.
The court has since acted as a rubber stamp for the administration, and the Venezuelan president, Nicolas Maduro, has used it well. This was backed up by an analysis of 45,000 rulings in cases involving the executive branch between 2004 and 2013, done by Antonio Canova, a Venezuelan law professor and constitutional expert, along with three co-authors. They found that of the 45,000 rulings, not one went against the government. After Maduro’s United Socialist Party lost the election for the national assembly in 2015, the president’s allies in the supreme court dissolved parliament and took its powers for themselves. And although the ruling was later reversed, the judges virtually function as an arm of the Maduro administration and has become a political weapon for the Venezuelan leader.
We do not believe Mr Stuart intends to go this far, but it is important that we as Barbadians have a certain degree of confidence that our final court of appeal will be fair to us at all times and not act on the wishes on any administration.
The Prime Minister also said the CCJ was disrespecting Barbados – a charge he has made in the past – but he did not say how. Is it because the regional court has repeatedly criticized our local judiciary for the length of time it takes to dispense justice?
In his self-immolating fury it was Mr Stuart who disrespected the justices by describing them as “politicians wearing robes”.
For a man as deliberate as Mr Stuart is, the attack on the CCJ judges was a sadly avoidable piece of self-harm.
Clearly, he was pandering to his base, but by so doing, he has trashed the DLP’s chances of attracting the support of the Commonwealth citizens who reside here.
Therefore, in paraphrasing the former British prime minister, Clement Attley, a period of self-reflection on Mr Stuart’s part would be most welcome.
And during this period of reflection, we hope he will recall what another British prime minister, Margaret Thatcher, said in a 1984 lecture: “We must never give in to the oldest and least democratic trick of all, the coercion of the many by the ruthless and manipulating few.”