Background

In 1967, the Organization of Eastern Caribbean States  namely Antigua, Anguilla, Dominica, Grenada, Saint Vincent and the Grenadines, Saint Kitts & Nevis, and Saint Lucia joined in a new status of association with the United Kingdom, in accordance with the West Indies Act of 1967. The Act provided for Her Majesty by Order in Council to establish common courts for the Associated States with such jurisdiction and powers as may be so specified or determined. The Order in Council also allowed provisions to be made for the establishment in common of a Judicial and Legal Commission to appoint judges and other judicial officers of the Court; for the remuneration, allowances, and pension rights of the judges and officers of the Court; and for defraying the expenses of the Commission and the Courts. This remains in place today, and ensures that such matters stay out of government control.

The West Indies Associated States Supreme Court Order duly followed and gave effect to Section 6 of the West Indies Act, permitting the establishment of common courts for the Associated States West Indies Associated States Supreme Court. Since then, this Order has been given constitutional recognition and effect by two successive Constitutions: the Associated State Constitution of 1967 and the Independence Constitutions of the respective States beginning with the Independence Constitution of Grenada in 1974.

The most important change initiated by the Supreme Court Order was the fusion of the High Court and Court of Appeal into one Supreme Court, and the confinement of all appeals to the Court of Appeal. The previous practice, which allowed the appellate jurisdiction to be shared by different appeal courts, was abolished.

The West Indies Associated States Supreme Court, now styled as the Eastern Caribbean Supreme Court, initially had its headquarters in Grenada, until it moved to Saint Lucia following the overthrow of the constitutionally elected government of Sir Eric Matthew Gairy in March 1979. The inclusion of the British Overseas Territories of the British Virgin Islands, and Montserrat have now increased the Court’s membership to nine. It’s stated Mission is: “To serve its Member States by providing access to a system of justice that is accountable and independent, and administered by officers in a prompt, fair, efficient, and effective manner”.

Staffing/Composition

There are twenty High Court Judges serving the Region with four currently stationed here in Antigua and Barbuda: two each sitting on the civil and the criminal bench, with a retirement age of sixty five in some States and sixty three in others, and a possible extension for a maximum of three years by the Commission with the concurrence of all the Prime Ministers. The Court of Appeal now boasts of a membership of six (for years, it was four) including the Chief Justice, with a retirement age of sixty seven, subject to a similar extension. The retirement age is entrenched in the Constitution, and needs to be increased given the growing number of judges being asked (due to need for their services, and given their established knowledge and experience) to act in that position after reaching the mandatory age. I am therefor of the considered opinion that the retirement age for all judges should be increased to age 70, with a possible extension up to age 75 maximum. That, of course, will need to be addressed by way of referendum.

Financing

The Eastern Caribbean Supreme Court is financed by contributions from the nine members of the Organization of Eastern Caribbean States (OECS) in accordance with an agreed percentage for which allocations are made in their respective annual Budgets. The contributions presently agreed on are as follows:

All of the Member States are indebted to the Court in respect of contribution arrears. Antigua and Barbuda’s indebtedness up to the 2013/14 financial year is a mounting $5,800,000.00 – an amount three times more than its contribution for the Court’s financial year 2012/13. If that is the trend (more or less) with all the States, how can the Court properly meet its recurrent expenditure in addition to its requirement for modernization, better court facilities, continuing judicial education, or more judges, judicial officers and staff in the face of increased litigation and more attorneys in private practice.

Workload

Out of an aggregate of 8,535 High Court civil cases filed in the nine Member States in 2012, Antigua and Barbuda accounted for 1,503 of which only 340 were disposed of. In St. Lucia, 2,341 cases were filed of which 1,691 were disposed of; and in Grenada, the corresponding figures were 1,260 and 697. The complexity of the matters, the referral to mediation, the readiness of the attorneys (who love to seek adjournments), and the ready availability of litigants and witnesses, all contribute to delay.

It must be remembered that the Court of Appeal is an itinerant Court, and travels to sit as a full court in a panel of three judges in each of these Member States three times a year; it varies in the British Overseas Territory Members. In addition, the Court may be required to hold additional sittings to accommodate matters considered of urgent public importance, and handles numerous applications concerning appeals.

Our Chief Justice, Her Ladyship Dame Janice Pereira, recently had occasion to inform us that “Between January and the third week of April 2014, the Court of Appeal conducted a total of 8 Full Sittings (which included 2 additional sittings) covering over 170 matters. It also conducted a further 4 full days of hearings dealing with various interlocutors applications totaling 176. During the same period, the Court delivered a total of 16 written judgments, and additionally gave a total of 42 oral decisions”.

This detailed information should provide you the reader with an appreciation of the volume of matters coming on a regular basis before the Court of Appeal, which endeavours to deliver judgments within a three-month period. Occasionally, additional but temporary judges are appointed (from the High Court bench or from practicing senior attorneys) to act for short periods at specific sittings.

How do we compare with other Courts of Appeal? That they have to address a backlog of appeals filed is patently and painfully obvious. Unfortunately, the delays experienced by the Eastern Caribbean Supreme Court are not unique as the Courts in Barbados, Guyana and Trinidad and Tobago have comparable  if not more significant backlogs.

Support for this assertion is found in a ruling handed down on Thursday October 16, 2015 in a land dispute that had been before the courts since 1998, the CCJ said that steps must be taken to ensure that citizens enjoy the benefit of the constitutional promise of a fair and expeditious resolution of disputes. The CCJ noted that the initial trial judge took more than five years after the substantive hearing in the High Court to deliver his judgment. The appeal, which was filed one month after the High Court ruling, was not heard until six years later and it was another year before the Court of Appeal issued its judgment.

This type of delay imposes hardship on the litigants. This is a case where the hardship is obvious. The delay also reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles. Steps must be taken to ensure that citizens enjoy the benefit of the constitutional promise of a fair and expeditious resolution of disputes. Regretfully, we are forced to comment once more on the excessive delay that characterizes many cases coming to us from Barbados.

These serious comments tell a sad tale, but note from whom it comes!

Independence of Judges ? Myth or Reality?

Our respective Constitutions governed by the rule of law must guarantee the independence of judges. Thus, our judges are protected from appointment and against dismissal by the governments; that process is in the hands of the Judicial and Legal Services Commission. There would be an obvious threat to that independence if a judge’s salary or tenure of office were dependent on the acceptability of his/her judgments by the government, or any other body for that matter. In comparison in the United States, the appointment of Supreme Court justices is sometimes a matter of political controversy, and the Court’s decision in the case of Bush v Gore, ensuring the success of George W. Bush in the 2000 presidential election, has been described as a pellucid display of “simple political partisanship”. Only the appointment of our Chief Justice must meet the unanimous approval of the Prime Ministers and this, to be frank, has unfortunately resulted in a few judges holding that position in an acting capacity for varying periods.

Of greater significance in the efficient running of our courts, is the adequate financing of the Supreme Court on an ongoing basis. Annual Budgetary allocations by the respective governments have resulted in a holding back of the sustained development and more rapid modernization of the judicial system: from the appointment of more judges, better terms and conditions of appointment, continuing judicial education, and modern Halls of Justice in the various States, to more qualified judicial officers, adequate trained and performance-driven staff, and updated electronic information and communication technology to drive the Justice process efficiently.

For that very reason, I would strongly advocate the establishment of a Trust Fund (like that established for the CCJ) by Member States for the financing of the whole judicial structure, including the Magistrate’s Court. Neither the current state of arrears nor the current state of affairs is in the best interest of the Supreme Court or, by extension, the greater good of our citizens.

Justice must not only appear to be done; Justice must also be seen to be done!

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In my fourth article, I will examine the key features of the Agreement which speaks to the establishment of the Caribbean Court of Justice as an independent and well-funded final appellate court (with original jurisdiction in Treaty matters) of resourceful judges within an efficient administrative structure of sufficient qualified support staff, and all necessary IT facilities.

Justin L Simon, QC