Lake

The debate on the embrace of the Caribbean Court of Justice (CCJ) has been waged long and passionately. But, so far, it has been confined to the issue of whether or not the Judicial Committee of the Privy Council should be displaced in favour of the CCJ. The badge of sovereignty and the crown of independence in our nation states demand its implementation.

The companion piece to the arguments on the completion of the integration process and the crown of independence has been a call in some quarters for the restructuring and need to reform the regional courts before we embrace the CCJ. These are all critical issues upon which the citizenry must be informed and which they must weigh in arriving at a decision to abandon the Judicial Committee of the Privy Council (JCPC) in favour of the CCJ.

Parallel with this debate is the initiative across the respective nation states of the region to effect fundamental constitutional change in our structure of democratic governance. It is often called 'repatriation of the constitution' and, if you are particularly scholarly, it may be called 'Re-founding of the polity.' A rose by any name, it means change in our constitutional arrangements.

national constitution

Judges at the launch of the Caribbean Court of Justice in Trinidad in 2005.

With the advent of this new initiative, it is time to turn aside from the bells and whistles of resplendent constitutional dress and consider, weigh and formulate how the role of the CCJ will be defined in each national constitution if the balance, the equilibrium in a constitutional democratic way of life, is to be maintained.

This critical determination of the role of the CCJ is not to be found in the treaty establishing the CCJ, which projects the duality of an original jurisdiction and an appellate jurisdiction for the nations of the Caribbean region. The role of the CCJ in the respective constitutions must be clearly defined therein so that the parameters of the balance of the governance powers between the legislature, the executive and the judiciary of the particular nation state are clearly revealed in each nation state's fundamental law.

Such an exercise demands a focused approach. It is propitious, therefore, in addressing new constitutional arrangements that sufficient time, scope and thought be given as to how the CCJ will find its place in the tapestry of the new constitutional arrangements and what its role will be. What is more, it is a matter which should form a quintessential part of the mandated exercise of a referendum on the replacement of the Privy Council and the adoption of the CCJ. Public education and discussion of the issue are crucial.

The need for this allocation of time and thought has been heralded in an address by Mr Justice Adrian Saunders delivered to the OECS Bar Association in Grenada on September 21, 2007.

CCJ's role as Supreme Court

From my personal vantage point, I think of the State as a wheel. At the hub are the citizens with their fundamental rights, the rim of the wheel is the Constitution, and within the wheel are the institutions of government, the radial spokes which fit into their designated slots and link and connect the rim to the hub in a predetermined way so that the wheel keeps its circular form and runs smoothly. If the radial spokes come loose and fall out of place, inevitably, the wheel will wobble. The wheel should assure the realisable aspirations of the people within its contemplation.

In that balanced wheel, the respective functions of the executive as the policy-making body, that of the legislature as the law-making authority and that of the courts, should be clearly defined.

The jurisdiction of the courts is that of arbiter of all disputes inter se the citizens, as well as between the citizen and the State, to have oversight of the workings of government; to ensure that there is no arbitrary incursion upon the rights of the citizen; and to ensure the integrity of government in maintaining compliance with the constitutional provisions.

I would have thought that central to the judiciary's role as arbiter in a three-tiered legal system would be the review and reconciliation of all matters in dispute coming before the courts in an ascending order of refinement and determination. From that central vantage point, the Supreme Court could have no agenda and, therefore, would not and could not need a constituency to support and advance an agenda.

interpreting the law

The role and purpose of the Supreme Court is not that of policy-maker or law-creator, but that of interpreting the law and applying the law so interpreted to the issues before it.

In the address of Justice Saunders, he postulated otherwise. He opined:

"At the level of the CCJ, as it is with the JCPC, the judges must often determine important questions of policy that touch and concern the daily lives of the general populace. Judges of final courts do not simply reveal the law. The law they proclaim is not like gold in a mine for which judges merely need to have the right tools and techniques, dig in the right place and expect to discover nuggets of shining truths that lie there waiting to be discovered. It is never like that."

The judges of final courts are invariably involved not so much with the discovery of the law but in its creation. Whether we like it or not, that is the nature of the common law. Judges of final courts often have choices before them. Each different choice may be perfectly consistent with 'the law'. The choices that are eventually made invariably reflect the personal philosophical outlook of the judges who made them.

I think that Aharon Barak, president of the Israeli Supreme Court, puts it best when he observed that "The primary concern of the Supreme Court in a democracy is not to correct individual mistakes in lower courts judgments. That is the job of the courts of appeal. The Supreme Court's primary concern is broader, systems-wide corrective action. This corrective action should focus on two main issues: bridging the gap between law and society, and protecting democrac".

moral content

The justification of Aharon Barak's formulation on the role of the Supreme Court depends on the moral content of the Constitution of Israel. It is for that reason that we will need to define the moral content of our constitutions and reflect that moral content in determining what the role of our Supreme Court, the CCJ, will be in our Constitutional prescriptions.

By way of contrast, I put forward the views of Justice Beverley McLachlin CJ of the Supreme Court of Canada in an address in New Zealand 2004:

"The role of judges in a democracy is to interpret and apply the law. The law involves rules of different orders. The highest is the order of fundamental constitutional principles. These are the rules that guide all other law-making and the exercise of executive power by the State. More and more in our democratic states, we try to set these out in writing. But when we do not, or when, as is inevitable, the written text is unclear or incomplete, recourse must be had to unwritten sources.

"The task of the judge, confronted with conflict between a constitutional principle of the highest order on the one hand, and an ordinary law or executive act on the other, is to interpret and apply the law as a whole - including relevant unwritten constitutional principles.

This presupposes that the constitutional principle is established having regard to the three sources just discussed: usage and custom; values affirmed by relevant textual constitutional sources; and principles of international law endorsed by the nation. Determining whether these sources disclose such principles is quintessential judicial work. It must be done with care and objectivity. It is not making the law, but interpreting, reconciling and applying the law, thus fulfilling the judge's role as guarantor of the Constitution.

Dame Bernice V. Lake QC is a distinguished Caribbean attorney-at-law. Feedback may be sent to columns@gleanerjm.com.