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Forging a Caribbean Jurisprudence

In the minds of many, the landmark October 4, 2013 judgment of the Caribbean Court of Justice (CCJ), in the case of Jamaican national, Shanique Myrie versus the State of Barbados firmly entrenched the independent role of the Court in adjudicating upon matters in its original jurisdiction.

The court found that Myrie had, in March 2011, been wrongfully denied entry into Barbados, subjected to a humiliating cavity search and unlawfully detained overnight in a cell and later expelled from the island.

The ruling was especially noteworthy since Barbados is fully subscribed to the CCJ both in its original jurisdiction and as its final appellate court while Jamaica has retained the Judicial Committee of the Privy Council as its final court of appeal.

The Myrie case also re-opened public discourse on the value of the CCJ and its place as a symbol of regional juridical sovereignty. To date, however, only Barbados, Belize and Guyana subscribed to the Court as their final court of appeal.

In this timely, exclusive Insight interview with President of the CCJ, Sir Dennis Byron, we look at the role of the CCJ in affirming the integrity of the process which gave birth to the idea of an indigenous court of final appeal and a mechanism for addressing breaches of the Treaty of Chaguaramas. Insight sat with the CCJ President at his office in Port of Spain.

Insight: There is a belief that in small countries such as ours, it is difficult to develop a truly independent jurisprudence. How do you respond to such a view?

DB: Any concern is a concern that must be addressed. It is clear that there are elements in our society who think this way. But I don’t think that it is justified at all. In a small society the judges are very visible. Everybody knows the judges – their background, their lifestyle, their behaviour, the way they operate.

I think the standard of judicial behaviour of judges in small communities must perforce be of a higher standard than judges in large communities where they are largely anonymous. When you live in a big community, nobody knows you at your home, at your church, at the supermarket, when you are partying. But in a small community, the judges are constantly in the public eye. So I take the view that our judicial demeanour is with us 24/7.

I am not aware of very many instances where there has ever been a clearly discussed accusation of corrupt behaviour. I would imagine that over all these years, there have been less than a handful of instances that people can point to.

It is extremely strange that this is something which should feature so prominently in the Caribbean Community.

When the CCJ was being established, much attention was paid to these issues and steps were taken to ensure that the institutional arrangements guaranteed that there was no interference with the selection … of judges.

So, in the first instance we have established a very independent commission, a regional judicial and legal services commission which is appointed independently of the governments of the region, in that the major appointing authorities are regional institutions such as the bar associations, the law societies, the Council of Legal Education, the universities and so on.

This selection process is a transparent and open process. Whenever there is a vacancy for the Court, it’s advertised and the applicants can come from anywhere. The process is governed by selection criteria which are published and during the operations of the Court the selection of the judges have reflected an international flavour of high quality.

The idea that seven judges who have established independent reputations in different parts of the Caribbean and different parts of the world would be amenable to corrupting influences and biases is unthinkable.

Insight: Given the makeup and performance of the Court so far, what do you think has been its impact on Caribbean jurisprudence at the national and regional levels, with particular reference to its final appeal court?

DB: One would have to look at the three countries that have come on board with the final appellate jurisdiction – Guyana, Barbados and Belize.

Guyana is a special case because … before it joined, it did not have a second level of appeals. When you look around the world in countries that have a good justice system, the structure of justice was a trial, then an appeal, where the issues were sifted, and then there was an appeal to an appeal court. The CCJ provided that for Guyana, putting it in line with modern countries that have a justice system they are proud about.

When you look at it theoretically, having that third level of appeal is really important for the final analysis and development of jurisprudence in a country.

Guyana, for example, has a hybrid land law system which is a mixture of Roman Dutch law and English common law which is fairly unique and complex. So this mixed land law system has for many years existed but it created a number of jurisprudential problems.

Although I suppose the situation is ripe for legislative reform, in the meantime ordinary folk have disputes which require resolution by the judicial system.

[He cites the landmark cases of Ramdass v Jairam in 2008 and Ramkissoon v Fung Kee Fung and 2010 in which the principle of “equitable interest” was explored by the CCJ].

I think that (these cases) clarified and developed important issues that were troubling the jurisprudence in Guyana for some time. There had been several cases which had been settled before the court in which the judgments were not consistent with one another.

Insight: There is a view among many Guyanese that ordinary folk do not enjoy equal treatment within the court system. Do you think the performance of the CCJ can address such a perception?

DB: When you look at the number of cases that have come from Guyana, it demonstrates that people have had an opportunity to reach a second level appeal which they never had before. It’s also very fascinating when you look at the litigants, because many people had thought that the CCJ would have been a court only for criminal matters, but there has only been one criminal case coming from Guyana.

And when you look at who the litigants are, they have comprised many ordinary folks. It has not only been the state or corporations or wealthy people.

The CCJ has as part of its rules special provision for appealing as a poor person. The Court is able to make orders which will make it easier for people who fall in that category to access the Court’s activities.

[He cites Elizabeth Ross v Coreen St Clair in 2008, involving “two poor ladies” over the right to occupy a condominium].

The CCJ heard it “in forma pauperis” (a phrase that indicates the permission given by a court to an indigent to initiate a legal action without having to pay for court fees or costs due to his or her lack of financial resources) and two members of the Guyanese bar agreed to represent these ladies pro bono.

These ladies were able to have most of the hearings done by teleconferencing. The Court used its technology to allow them not to have to expend money to leave their home base to access the Court. They could stay right in Guyana and appear in the Court that was here (Trinidad).

An excerpt of Insight‘s interview with Mr Byron: https://www.youtube.com/watch?v=I–KBcaoT6Q

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