The CCJ under attack – ‘politicians in robes’

The total electoral devastation of the Democratic Labour Party (DLP) and the political exit door shown to former Prime Minister, Freundel Stuart, by the Barbados electorate at the elections last Thursday, is an apt and decisive answer to the vicious attack Stuart made on the Caribbean Court of Justice earlier in the week, when referring to the judges derogatorily as ‘politicians in robes.’ It is not unusual for politicians to be peeved by court decisions. Guyanese politicians have expressed ‘concern’ about issues relating to the CCJ on several occasions in the past, including the recent past.

In the UK, the developed country from which we inherited our laws and jurisprudence, and whose precedents are the most influential in the CCJ, judges and courts are regularly criticized, as they should be. But Stuart did not merely criticize; he unjustifiably attacked the CCJ for political bias and undertook to withdraw from the Court. Had he won the elections, Barbados’s withdrawal would have dealt a crushing blow to Caribbean unity and, worse, would have weakened Caribbean jurisprudence and the rule of law in the region.

The former Prime Minister was angry because the CCJ ruled against Barbados for the second time. First it was the Shanique Myrie case. Barbados, then in the throes of its anti-immigrant bias, exploited by the DLP to obtain its electoral victory in 2008, had refused entry to Myrie who was a Jamaican national. The CCJ ruled that the refusal violated the Caricom Treaty. Barbados had to pay damages.

On this occasion, the electoral authorities had declined to register Commonwealth citizens who had satisfied residence qualifications. The High Court Judge ruled in favour of the applicants and ordered the chief election officer to include their names on the electoral list, after recognizing their right to vote at the elections.

The Barbados Court of Appeal only partially upheld the High Court ruling. It did not order the chief election officer to include the applicants’ names on the list. This obviously opened the door to their names being omitted from the list which would have deprived them of their right to vote.

The CCJ restored the High Court order that the chief election officer include the applicants’ names by a certain date, thus assuring that all Commonwealth citizens, numbering about 7,000 persons, that their right to vote would be protected. The DLP was afraid of this constituency, as it turned out, rightly so. Stuart and the DLP must have known what was coming. He probably hoped that if Commonwealth citizens were not given the right to vote, he could salvage some electoral credibility. Many constituencies are won or lost by a few hundred votes.    

Stuart’s attack had raised the frightening possibility of the Barbados Court of Appeal being that country’s final court because he said that Barbados would not return to the Privy Council. Guyana has had that experience between 1970, when appeals to the Privy Council were abolished, to 2005 when Guyana and Barbados acceded to the CCJ’s appellate jurisdiction. The number of decisions of our Court of Appeal and the Barbados Court of Appeal which have been reversed by the CCJ since 2005, demonstrates that the quality of our jurisprudence is being continually enhanced and uplifted by the presence of the CCJ as a final court of appeal. Despite this clear advantage, the great benefit to our judges and citizens, and the substantially reduced cost of appeals to the CCJ as opposed to the Privy Council, it is extremely disappointing that voices such as Stuart’s are being heard. The late Errol Barrow, one of the Caribbean’s great regionalists, and a former DLP Prime Minister, must be turning in his grave.

There is the much more troublesome issue of the struggle for judicial independence in many countries. Even in large countries that broadly uphold democratic principles, such as free and fair elections, there have been complaints about interference in the judiciary. Malaysia is an example. The electorate has recently voted out the government of a party that has been in power for over fifty years. Yet, there have been complaints that governments have controlled the judiciary. If large countries have this problem, what about countries like Barbados and Guyana, where everybody knows everybody else, particularly the elites in the executive and judiciary. In these countries, it is easy for the executive to feel politically betrayed by a judiciary. Hence Stuart lashing out at the CCJ.

The issue of immigration in Barbados was indissolubly linked to the electoral strategy of the DLP. In 2008 it came to power in a surprise defeat of the Barbados Labour Party (BLP), then led by outward looking regionalist, Owen Arthur, when the economy was thriving. The DLP had played the ‘immigration card,’ suspected to be directed against Guyanese. Part of the BLP’s strategy in reversing a declining economy had been to encourage investment in information technology which resulted in an influx of Indian business people. The DLP’s continuing insularity and the distancing of itself from Caricom integration, which would have meant freer immigration, worked again in 2013. The DLP therefore had a vested interest in preventing Commonwealth citizens, many of them Guyanese, from voting.  It did not succeed and directed its fury to the CCJ.

 

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