BY virtue of the Constitution of the Cooperative Republic of Guyana (the Constitution), the Caribbean Court of Justice Act 2004 (CCJ Act) and the Agreement Establishing the Caribbean Court of Justice (the Agreement), the Caribbean Court of Justice (CCJ) is Guyana’s highest court of superior record, whose orders must not be disobeyed.
I make this statement in the light of words which News Room, on Friday 21 June, 2019, attributed to two senior government ministers. News Room reported Minister of State Mrs Dawn Hastings-Williams, as saying that that “GECOM is the only authoritative body that will inform the government whether they’re ready or not for elections. CCJ cannot rule; Guyana has its own institution.” She is also said to have told reporters that “Guyana is an independent country with its own independent laws.”
Meanwhile, the same outlet reported the Minister of Foreign Affairs, Dr Karen Cummings, as saying that “we abide by the rules but at the same time, we have to take care of our sovereignty.”
The statements were made against the backdrop of the CCJ’s judgment in the no-confidence cases.
These words seem to suggest that Guyana can ignore an order of the CCJ on the basis of independence, or sovereignty. It is a curious curiosity that ministers occupying the highest strata of government office would hold such opinions on legal questions, and more gravely, share those opinions with members of the public.
Surely, the nature of both of these portfolios dictates, at least, a working knowledge of the nature, function, and powers of the CCJ. Moreover, both ministers have the benefit of competent in-house counsel, and or the assistance of the Attorney General’s Chambers. I am therefore prepared to assume that despite the words used, neither minister intended to suggest that ignoring an order of the CCJ is an option.
However, intentional or not, posts across several social media platforms suggest that this is exactly what was received by many Guyanese. In the premises, and in contemplation of the fact that a monumental number of Guyanese depend exclusively on senior government officials for statements of political, socio-economic, and legal fact, I take this opportunity to offer some clarity.
The CCJ is a creature of the Agreement, a regional treaty by which Guyana is bound. Article III (1) (b) of the Agreement establishes the appellate jurisdiction of the CCJ, and “the decisions of the court are final”: Article III (2). Guyana signed the Agreement on 14 February 2001.
In the same year, Article 123 (4), was added to the Constitution to allow Parliament to “…make provision…authorizing any court established or to be established, as the final court of appeal for the Caribbean to be the final court of appeal for Guyana.” It is apposite to note that Article 123 (4) of the Constitution, one in a suite of amendments in the Constitution (Amendment) (No.4) Act 2001 , was specifically engineered, and effected to permit Parliament power to accept the then not yet established CCJ as Guyana’s final court.
Parliament exercised that power when it passed the CCJ Act, which, by Section 3, gave the entire Agreement legal force in Guyana. As such, decisions from the Court of Appeal may be appealed to the CCJ, whose decisions in those matters are authoritative and final. Indeed, the result eventuated by these laws is that while the CCJ exists outside of Guyana’s terrestrial jurisdiction, it exists, and functions within our judicial hierarchy and legal framework.
On the subject of sovereignty, contemporary international law authorities espouse the generally accepted view that sovereignty is of variable magnitude, shrinking, or expanding in accordance with the contraction, or proliferation of international law. Views that sovereignty is either constant, or absolute are outdated.
Furthermore, Guyana exercised this sovereignty in agreeing to be bound by the appellate jurisdiction of the CCJ. In doing so, it willingly ceded a portion of its sovereignty in so far as it is bound by law to comply with orders of a regional court. This reality exemplifies the view often iterated by Professor Duke E.E. Pollard, that the essence of sovereignty is the faculty to compromise it.
In the premises, any suggestion that an order of the CCJ may be ignored in the name of independence or sovereignty is folly. Further, while GECOM is best placed to determine when elections can practically be held, if the court finds that GECOM’s actions or considerations fall outside of what is required, it may make an order which influences when elections are held.