- September 13, 2016
- Posted by: Joan H. Underwood
- Categories: Governance, Leadership
This is a battle involving the hearts and minds of our nation.
Beating opponents over the head with reason won’t eliminate their heartfelt concerns.
During the past few months Underwood Talent Development Services (UTDS) has contributed to the public dialogue on the Caribbean Court of Justice (CCJ) by presenting a series of guest blogs penned by Justin L Simon QC.[1] Personally, I support the move to the CCJ as the final court of appeal. However, based on what I’ve been hearing over the past several weeks, I have reluctantly come to the conclusion that the upcoming referendum will lead to a rejection of the bipartisan move to replace the Privy Council with the CCJ.
The sad reality is that said rejection, in truth and in fact, has little to do with the CCJ in and of itself. Rather, the imminent defeat is a symptom of a People’s disaffection with government and governance as well as their resentment of a public education campaign that is widely viewed as doing too much telling and not enough listening.
In this week’s blog, UTDS will explore some of the factors which we think are contributing to the increasingly vocal resistance to the adoption of the CCJ as the final court for Antigua and Barbuda. While we will be highlighting events in Antigua and Barbuda, we encourage our CARICOM brothers and sisters to examine whether these same concerns and circumstances also exist in their home countries.
Dissatisfaction with the Lower Courts
The reality is that the average Antiguan has never had any direct dealings with the Privy Council and is unlikely to have direct dealings with the CCJ. However, many more have had occasion to seek justice before the Magistrate’s Court and/or the High Court. Unfortunately, those experiences have left many feeling frustrated frustrated by inordinate delays some of which are attributable to heavy caseloads and inadequate staffing; frustrated by delay tactics on the part of opposing counsel; frustrated by dissatisfaction with the quality and/or cost of legal representation.
In this regard, it is noteworthy that within the past few weeks the general public has been made aware of at least two separate law suits brought against Attorney General Steadroy Benjamin by former clients. In said cases, Mr. Benjamin and/or his law firm reportedly sold properties and failed to utilize the proceeds from said sale for the intended purpose. The public has also been alerted to the fact that in at least one other CARICOM country i.e. Jamaica attorneys have been disbarred for similar offenses.
There is an increasingly vocal segment of society which has taken the position that the move to adopt the CCJ should be twinned with comprehensive reform of the lower courts including the establishment of an effective legal aid system. Further, it has been suggested that the magistrates should also be insulated from political interference through measures such as those utilized to safeguard the independence of the CCJ.
Fear of Political Interference
Both Justin Simon and the National Coordinating Committee have gone to great lengths to convince the public that the CCJ is well insulated from political influence and interference. In one of his blog articles, Mr. Simon described five specific safeguards namely qualification criteria for the judges, the appointment and removal process for the justices, security of tenure, enabling legislation and funding arrangements. While these mechanisms do present a persuasive argument for judicial independence, Antiguans and Barbudans are hard pressed to overlook/disregard historic and more recent events that suggest if not prove that the political directorate has both the intent and the ability to exert undue influence.
Perhaps two specific examples will serve to illustrate that point. Prime Minister Browne has made public pronouncements that he will use the resources of the State to bankrupt those who oppose him.Said statement, taken in tandem with the litany of cases brought against several members of the Opposition’s leadership team[2], has led many to conclude that the threat was not an idle one.
Choosing the Messenger and Well as the Message
Dr. Francis Alexis has been playing a major role in the public education campaign in Antigua and Barbuda.
This erudite Caribbean national is well versed in matters related to constitutional law. However, there has been an almost visceral reaction to his advocacy. In addition to the previously raised points about the content of the message, it has been posited that Dr. Alexis simply isn’t the best choice of messenger for certain audiences. Earlier this year he had a number of particularly testy exchanges with members of The Movement, a leading grassroots organization committed to promoting participatory democracy. [3]
Within the past few weeks, it has been mooted that the initial resistance to Dr. Alexis in his role as CCJ messenger has been exacerbated by his weighing in on national politics by publicly defending the Prime Minister. Given the previously articulated concerns about the independence of the CCJ, how would Dr. Alexis have helped the cause by inserting himself into the political fray.
[1] Interested readers can follow these links to the UTDS CCJ blog series: http://utdsinc.com/understanding-the-ccj/; http://utdsinc.com/understanding-the-ccj-pt2/; http://utdsinc.com/our-eastern-caribbean-supreme-court/; and http://utdsinc.com/the-agreement-establishing-the-ccj/
[2] Said cases include a recently dismissed charge of public mischief against the United Progressive Party’s public relations officer. It is noteworthy that the Privy Council declared that statute unconstitutional as far back as the 1990s. Further it has also come to light that the DPP had so advised the police and indicated that the charges had no merit. Nonetheless, the police proceeded in their attempt to prosecute the case.
[3] See http://www.caribbeantimes.ag/expert-addresses-concerns-movement-ccj-education-campaign/ for media coverage of Dr. Alexis meeting with The Movement.
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My thoughts on this matter is that we have to start somewhere. The twinning of the current issues in the lower courts with the matter of the CCJ should be discouraged in my opinion. The silver lining with having the CCJ is that if we experience injustice at the lower courts, at least the final appellate court would be more accessible so persons can now challenge those decisions.
Mike, I was right there with you until about a week or two ago. In fact, I had that identical conversation with a number of individuals as I sought to lobby support for the CCJ.
So, what changed my mind? Simply put it was the reality that those who are more concerned about the problems with the lower courts are not likely to relinquish the leverage they have. You know the old adage about a bird in the hand… Since the anti-CCJ camp already doesn’t trust the “establishment”, why would they vote for YES in the CCJ referendum and then trust the government to make the promised improvements to the lower courts?
So, the twinning of the issues may simply be their way of holding out until they get the reform that they really want/need. My grandmother used to be a huckster in the vegetable market. Although she knew perfectly well that it was illegal to “marry” scarce vegetables to those that were in abundant supply, no number of threats from the Price Control Division ever stopped her from telling customers “If you want my tomatoes, you’re going to have to buy carrots with them.”
Very interested in the telling phrase, “too much telling and not enough listening”. This might be an indictment on the entire set of top down processes we try to impose on our citizenry. This “telling” culture is not going to work to improve our societies, we need another kind of leadership.
For those of you who missed the Chief Justice’s comments at the opening of the new law year, it’s worth a read/listen. She clearly indicated that there have been attempts to influence the judiciary. Her candid remarks serve to validate the concerns mentioned in this blog and are being described by many observers as yet another nail in the coffin of the CCJ Referendum.
The elephant in the room is attracting more and more attention… time do do something about it!
Headlines in Antigua and Barbuda today once again shine the spotlight and raise questions about the relationship between the Executive and Judiciary. Specifically the Appeals Court took four sitting Ministers to task for failing to show up for their court date. That in itself is newsworthy. However, the fact that yesterday was the TENTH time that they had done so raises more than just eyebrows.
What is viewed in some quarters as disdain for the judiciary serves to highlight some of the concerns expressed by the general public about the relationship between government officials and the judicial system. Many citizens and residents have had bench warrants issued for them when they failed to show up for their court date ONCE! While it could be argued that there are obvious and significant differences since the case in this instance is an appeal brought by the government officials themselves, the situation has served to fuel the ongoing debate and concerns re how government officials use and misuse the courts.
Just a short note to share a recent development related to this issue. Within the past week the media have carried reports indicating that PM Browne is considering calling off the referendum if he doesn’t think that he can secure the required two-thirds majority. UTDS will continue to monitor this issue and provide further updates.
In related news, Grenada was scheduled to have their referendum on constitutional reform (including adopting the CCJ as the final appellate court) on October 27th. It’s been rescheduled to November 24th. Interestingly Grenada is using the approach which the Opposition in Antigua and Barbuda is advocating – i.e. including multiple constitutional issues on the ballot. We will be keeping an eye on our OECS neighbour to see what lessons we can learn from their experience.
Today’s headlines include a story about the Chief Justice of the Eastern Caribbean Supreme Court taking Antigua and Barbuda’s Chief Magistrate to task for failing to comply with the Court’s order for her to submit records concerning one of her cases. The deadline given to the Chief Magistrate was May 2016. To date, she has failed to comply.
I mention this to reinforce UTDS’ earlier statements re the public’s concern about their access to justice in the lower courts. What do you think is of greater concern to the poor gentleman whose appeal is being delayed by the Chief Magistrate’s failure to submit her paperwork – CCJ or the timely and effective administration of justice in the lower courts?
This is the second instance in as many weeks where in Antigua and Barbuda we have seen senior officials express what many have interpreted as disdain for the courts and the judicial process. Once again, this leads us to ask “Quo vadis the CCJ?”
Visit http://antiguaobserver.com/court-summons-hangs-over-chief-magistrates-head/ to read the story.
Well, Folks, the Grenada referendum is now history, and the voters overwhelmingly rejected the move to the CCJ as well as all the other constitutional reform proposals.
Based on the reports coming out of Grenada, voters felt that the government was not listening to or taking their concerns into consideration. You may recall that that was the exact same conclusion that led me to pen this particular blog.
As a further footnote, in the wake of the news coming out of Grenada, PM Browne stated that he would be conducting a poll and that if said poll failed to show at least 70% of respondents being in support of the move to the CCJ, he would not be proceeding with the referendum.