By Lincoln Lewis
THE Caribbean Court of Justice (CCJ) was established in 2005 as the judicial branch of the Caribbean Community (CARICOM) with original and appellate jurisdictions. The former jurisdiction attends to matters pertaining to the Treaty of Chaguaramas (the establishment of CARICOM) and the latter as a member-state court of last resort for civil and criminal matters. The establishment of this Court augurs well for the peoples of the Region quest for self-determination.
In its 15th year, the Court records four member-states out of the 15 member-states and five associate member-states in the 20 countries grouping. The participating countries are Barbados, Belize, Dominica, and Guyana, the first three extricating from the United Kingdom Privy Council as their court of last resort; Guyana having done so since 1970 when we became a Republic. Instructively, Trinidad and Tobago, where the Court is headquartered, is not a member.
Presently, all eyes are on the CCJ. In its hands it holds resolution to the election impasse and the sovereign right of Guyanese to elect their President. The President of the Cooperative Republic of Guyana has dual functions. The office holder is Head of State and Government, and our Constitution vests the power solely in the hands of Guyanese on matters pertaining to his/her election. This is not by accident, given the responsibility of the office, and duty to the nation and citizenry.
Our Constitution expressly states, “Sovereignty belongs to the people who exercise it through their representatives and the democratic organs established by or under this Constitution” (Article 9). And whereas the President is an elected representative, given the portfolios of the holder, special attention is given to qualification needed to hold this office, including approaching the court for clarity surrounding his/her election.
As per Article 177, which deals with the ‘Election of the President,’ it is the “Court of Appeal that shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as that question depends on the qualification of any person for election or the interpretation of this Constitution; and any decision of that Court under this paragraph shall be final.”
Under the extant Article, on the 22nd June, the Court of Appeal, by majority decision, ruled on the issue of valid votes to elect the President. This ruling has been challenged and is now before the CCJ seeking leave to hear the case.
The argument made to approach the CCJ as an “appeal of right” enshrined in our Caribbean Court of Justice Act Cap 3:07, Section 6 (c) ‘Jurisdiction of the Court’ allows that “An appeal shall lie to the Court from decisions of the Court of Appeal as of right– in any civil or criminal proceedings which involve a question as to the interpretation of the Constitution.”
Whereas the right to appeal in a court of law is universal and must be respected, such right is authourised by the prescribed law. Article 9 of the Constitution assures that “This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
A lot was said at the CCJ sitting last Wednesday to determine whether the Court can hear the matter. We were subjected to listening to issues that had no bearing on the Court’s instruction, yet these were facilitated and entertained by the Judges. This is not a matter only of interest to Guyanese but to other participating member-states and peoples of the Region. In a region, even as we pursue self-determination and any step in this direction ought to be welcomed, we are also dealing with self-doubt and suspicion as to our ability to set aside partisanship, familial association, etc, and dispassionately dispense with justice.
There is real concern that our courts could be used, and have been used, to make political, not legal decisions; that judges could arrogate to themselves the authority of legislatures (making laws) rather than be interpreters of the law (judiciary). The CCJ is vested with the authority to make legal not political decisions. It must insulate itself from the noise of local and external forces who desire to carry the Court in any direction outside of its scope, mandate, and the issue before it.
The CCJ must leave the politicking for the politicians and those with vested self-interest. This case is not only of import to Guyana but the entire region where many have not signed on, some have voted not to, and others remain skeptical. It will be the litmus test for those who stand on the sidelines. Whatever decision the Court arrives at if there is any inference such is not premised on law, the CCJ will not be deemed credible in the eyes of the people. This would be a blow to the entire Caribbean integration movement and the peoples’ quest for self-determination, judicial and political.