It has been universally accepted that in a democracy, people who freely gave mandate electorally, were to be wisely governed by democratic principles and the Rule of Law.
Thus, this was to be done through a concept called “...governance” and by an authority called “...Government.” Administratively, there were to be three primary arms for good governance; (i) ...a Legislature for the enactment of Laws-Socially for behavioral control and economically, for the provision of the services for improved quality of life; (ii) ...an Executive for public administration and policy-decisions in the national interest and generally, for the common good and (iii) ...a Judiciary, a bastion and vanguard of such principles; ...the protection of basic human rights, with recognition of the dignity and worth” of the citizenry.
Thus, civil society dictates that “...an efficiently functional and effective Judiciary shall be established for expeditious administration and dispensation of justice,” irrespective of litigating parties, societal and financial status. Thus, it was for these reasons that within a democracy, not only certain institutions were to be established, evidenced by advancement of modern civilization. Most significantly, the Judiciary within the Organization of Eastern Caribbean States (OECS) speaks to a specific “...Mission.”.” Rightly or wrongly, the damning conclusions of many litigants and people suggested that the “Mission,” speaks more to “...Idealism” than of “...Reality and Practice.”
This commentary looks briefly at the Mission of the Eastern Caribbean Supreme Court (ECSC), but primarily seeks to reflect upon “...Judicial, administrative and/or procedural irregularities” as described by the Privy Council, including a cursory reference to the “...Shanique Myrie civil proceedings” before the Caribbean Court of Justice (CCJ). The “...merit and/or demerit” of the substantive issues in both APCL/APUA Judgment and Myrie Case, may be best read by interested parties that informed conclusions may be reached. The proceedings in the Myrie case, instituted against the Barbadian Government, were reported to be on the basis of allegations respecting “...Discriminatory Immigration Practices and degrading treatment.”
The ECSC’s Mission speaks to “...Providing access to a system of Justice that is accountable and independent, and administered by officers in a prompt, fair, efficient and effective manner” [ECSC Newsletter: July-Sept.2011]. In recent times, however, administrators of justice appeared to have given the London Privy Council reasons to take umbrage with certain judicial decisions delivered in both the “...High Courts of Justice and the Appellate Court” for the Organization of Eastern Caribbean States (OECS). Additionally, they may have also given litigants more reasons to be aggrieved with their judgments, than with those they have accused of causing their grievances. Consequent upon recent Privy Council rulings, administrators appeared to have fallen woefully short of, or had deviated far from the ECSC’s Judicial Mission. Such assertions may easily be supported by the recent Privy Council “...APCL/APUA Judgment, cited as a case in point [Privy Council Appeal No. 0063 of 2013].
The “ ...Majority Judgment” of the eminent British jurists appeared to have been put into perspective, simplified even with alacritous delivery as to be seen as objective, well-reasoned and rational. The panel comprising “...Lords Neuberger; ...Mance; ...Sumption and Toulson, with Lord Carnwath dissenting, were profoundly instructive. The Judgment not only speaks to the “...contentious contractual issues” placed before the Judicial Committee, but also matters affecting apparent endemic “...inordinate delay; ...inefficiency; ...irrationality and un-reasonability; ...suspect or questionable adjudicating skills and administrative discourtesy” within the OECS Judiciary. These were not only some of the critical issues frequently raised, but also those litigants most “...feared; ...complained of; ...frowned upon and appealed against.
While the British Law Lords may have been concerned about “...scanty administrative courtesy” within the Judiciary, there was something more fundamental to the administration and/or dispensation of justice. Evidently conscious of the maxim “ ...Justice delayed is justice denied, “ in the delivery, they noted with particularity “...A serious and unexplained delay of nearly ‘TWO YEARS’ by an Appellate Court in giving a decision on an appeal of ‘NO UNUSUAL COMPLEXITY,’ not only causes uncompensatable and unjustified worry, (but) uncertainty and expense to the parties; ...More widely, as Arden LJ indicated, it risks bringing the Legal System into ‘DISREPUTE,’ and therefore undermining the Rule of Law” [Paragraph 62]. It was instructive that the Lords have noted that which may likely have occurred, when the judicial system had failed in its delivery, or when the scales of justice appeared to have tilted toward injustice or has caused litigants considerable financial woes, unavoidable anxieties, as to be sunken to inescapable depths of despair.
FINDING AND CHIDING
In the APCL/APUA Judgment, as if to say to the lone adjudicator, His Lordship Justice Errol Thomas and three distinguished Appellate Justices, Their Lordships Michael Gordon QC and Davidson Baptiste and Chief Justice, Her Ladyship Dame Janice Pereira [Para 29], “...Wheel and come again” (local parlance). The Law Lords noted with apparent aghast, yet with professional understanding of the issues and calculated bluntness that “...The issues before the Court of Appeal, (ECSC) were not ‘very complex,’ as evidenced by the fact that the appeal took ‘A DAY’ to argue, and the judgment ran to fifteen pages.” Clearly, but indirectly expressing chagrin over the justices’ handling of the appeal, they wrote “...Despite a politely worded request last year from APCL’s Solicitors, there has, even now, been no explanation, not even an apology for the delay.” These were the observations and irrefutable findings and chiding of the Privy Council as contained in the Judgment [Paragraph 62].
Thus, when litigants within “OECS” jurisdictions expressed dissatisfaction over (i) ...The administration and dispensation of justice; or (ii) ...expressed dissent over suspect judicial decisions; or (iii) ...complained bitterly of inordinate delays, and generally over the way the judicial system appeared to have been made to function, many aggrieved parties may rightly or justifiably feel vindicated for such expressions and/or complaints. These contentions may be viewed against the background of the informative dicta contained in the Judgment involving “...Antigua Power Company Limited (APCL) and the Antigua Public Utilities Authority (APUA).” Consequently, it may seem that such dicta puts into question, inter alia “...the reasoning powers of adjudicators and integrity of the Judiciary,” an institution specifically established for the administration and dispensation of the frequently “...misunderstood and/or misinterpreted concept called- JUSTICE.”
Current and future adjudicators, even Commissioners of Police, may very well learn some lessons from the “...APCL/APUA Judgment.” Thus, adjudicators and legal advisors may wish to avert the pitfalls of those “...sense of reasoning and judgment; ...inattentiveness and docility,” had been met with sharp criticisms by the Privy Council. Thus, aggrieved litigants, including Member of Parliament and former Prime Minister Lester B. Bird, may feel vindicated for their critical views of the legal system. The former Prime Minister, an attorney, had made it “...pellucid” that the Judicial system was in need of urgent and comprehensive reform, if public confidence in the Judiciary was to be lifted from its present waning position. While these assertions and/or suggestions may have been prompted by recent judicial decisions, they may have been reinforced by the Privy Council in which regional people seemed to have shown a preference over that which most have seen as egregious to their causes and incessant cries for -JUSTICE.
An unwanted pregnancy or one that which poses a threat to the life of the conceived may be prudently, lawfully and medically aborted. Litigants have perceived the CCJ in such context. In the administration of justice, there were no such considerations. Frequently, the innocent had suffered not only for the guilty, but also by the oppressors. Thus, until a miscarriage of justice had manifested itself, necessitating judicial reviews and correction by Superior Courts, aggrieved parties stand to suffer injustice. Consequent upon judgments that appeared to have been “...pregnant with perversion,” the Judicial Committee of the London Privy Council had been forced to “...reverse them, thereby averting “...possible travesties.” While such reversals may have the effect of placing adjudicators and their stewardship under close public scrutiny, they have, undoubtedly, brought to light a dire need for “...merit-based positional guidance in adjudicating appointments. Therefore, such was to be acutely considered on the basis of proven “...professional competencies, knowledge, experience, good sense of reasoning and judgment.” This process may be seen as consistent with the Mission of the Eastern Caribbean Supreme Court (ECSC) and necessary in achieving its objectives.
None may challenge the legal knowledge of adjudicators; no spurious questions may be raised or aspersions made over the “...character, professionalism and integrity” of those appointed to the Eastern Caribbean Supreme Court (ECSC) and affiliate judicial institutions. Nonetheless, questions may be asked of the apparent “...Prophetic Insights” of former St. Lucian Director of Public Prosecutions (DPP), Victoria Charles-Clarke. When she posited “...The Judge’s leaving would be a great loss of legal knowledge and experience,” she may have anticipated problematic adjudicating void developing within the St. Lucian Judicial system. She was referring to the departure of eminent Justice, His Lordship Kenneth Benjamin [ECSC Newsletter: July-September, 2011]. However, little did she know that adjudicating problems may have manifested in other OECS jurisdiction, attracting scathing attacks by the Judicial Committee of the Privy Council.
SIR DENNIS BYRON ERA
While current administrators and/or practicing Justices may have emulated former OECS Chief Justice Sir Dennis Byron and other prominent Justices in the persona of “...Their Lordships Satrohan Singh and Albert Redhead,” it was obvious that today, the legal system had found itself in a rather calamitous position. Their Lordships individual and collective tenure as “...Trial Judges and Appellate Justices,” reflected “...wisdom, independence of mind, integrity, comprehension of the issues at Bar and sound professional judgment.” They have shown exceptional wisdom, a passion and keen desire in dispensing justice, and had appreciably done so “...without fear or favor, malice or ill-will.” Such, therefore, may be seen as legacies established within the region’s jurisprudence, firmly embedded in the minds of even the most contentious and/or disagreeable litigants. Thus, though replaceable as Justices, their judicial stewardship may be seen as virtually unmatched. They were a unique cadre of Justices, the “...crème-de-la-crème.” Even with their own philosophical approaches to their responsibilities, closely identified with their “...judicial wits, independence, professional competence, fearlessness and decisiveness,” may be Her Ladyships, Justices Rita Joseph-Olivetti and Louise Blenman.
From many schools of thought, it appeared that some Justices showed a preference to “...Err out of an abundance of caution,” thereby revealing weaknesses of (i) “...Their inability in rendering sound professional judgment; (ii) ...Risking their reputation for justice and fair play; while (iii) ...Exposing themselves to verbal wrath of litigating parties, and adding insult to injury, by the harsh criticisms of the Privy Council.” For these reasons, “...Travesties of Justice” were to be perceived as being manifested in some mindboggling and/or adverse judicial decisions. Thus, for many litigants, justice appeared as ELUSIVE as their dreams.
As a consequence, litigants had been forced to describe these judicial decisions as “...Travesties of Justice.” On the other hand, reversals of such decisions by the Privy Council appeared to have been a mild way in suggesting that their judgment were grossly perverted, in nature and content and beyond the scope of litigant’s imagination, understanding and acceptance. From such perspective, it appeared that justice has constantly missed its reasonably “...Expected Manifestations” that it shall always be seen to be done. It may, therefore, be seen that Privy Council reversals were very likely to have debilitating effects, not only on the confidence of adjudicators, but also on that which litigants may be inclined to repose in their adjudicating skills that JUSTICE may not be seen as being haphazardly dispensed.
PERSPECTIVE-ANTIGUA AND BARBUDA
Antigua and Barbuda as in most democracies, law abiding people of all strata of society have not only cherished their individual rights, freedoms and liberties, but have also shown abiding faith in societal institutions in which they have reposed confidence. Hence, whether the institutions were of a “...religious or secular nature,” those with supported structures for the protection of the fundamental rights of the individual, were often viewed as the bastion of hope. It is universally accepted that most religious institutions were established specifically for “...spiritual edification, guidance, growth and upliftment of members of society. Conversely, people have also placed great value and reliance on secular institutions for providing requisite “...social, economic and judicial services” for societal development, orderliness, ultimate good of humanity, and more importantly, the Rule of Law.
Equally as much as people have embraced these institutions,” they are particularly mindful of the “...professional competencies, sense of urgency, reasoning and judgment” of those who have been charged with their administration. Relating these to the Judiciary, the bastion of protection and hope, litigants within the Organization of Eastern Caribbean States (OECS) seemed to have more quarrels with “ ...administrators of justice” than with those who had actually caused them grievances. Interestingly, these were concerns raised by Law Lords of the London Privy Council in the recent “...APCL/APUA Judgment.”
Interestingly, in the referenced case, like the High Court and Appellate Court Judges, Attorney General Justin L. Simon appeared not to have escaped the critique of the Law Lords for his advisory role in the “...APCL/APUA contractual milieu and the forced intervention of the Police.” The Lords appeared not to have been amused that “...The following day (December 1, 2007), a contingent of armed Police arrived and brought the operation to a halt.” Said the Lords, “ ...It appears from the affidavit evidence that this happened following ‘INSTRUCTIONS’ which, on the ‘ADVICE’ of the Attorney General, the Prime Minister gave to the Superintendent in charge of the contingent through the Commissioner. Concluding that something may have gone awry, the Law Lords further stated “...There was no direct evidence by, or on behalf of the Commissioner as to how this communication was ‘REGARDED’ by the Police” [Para. 26]. Inferentially, with a tenure of uncertainty and in a mode of “...docility and/or subserviency,” such instructions may have been frighteningly left unchallenged.
Addressing ‘APCL’s assertions that the Commissioner of Police may have been “...improperly ordered” to act in a matter that was purely a “...disputed contractual issue,” that necessarily required “...Civil Remedies,” the Law Lords referred to the historic “...1968 case R v Commissioner of Police of the Metropolis, Raymond Blackburn” [2 QB 118, 136]. Commissioner Blackburn was reportedly sacked for refusing to respond to the “...whims and fancies” of seemingly overly officious British public officials. Litigating the apparent high-handedness in which he was removed from office, the Lords noted “...As Lord Denning, Master of the Roll said it is the duty of the Commissioner and every Chief Constable to enforce the land” [Para. 52: PCA No. 0063 of 2013]. The case was well known and ought to have been known by every Law enforcement administrator.
Bringing clarity to the point, the Law Lords sought to define the position of Commissioners of Police in responding to that which there was no obligation. They wrote “ ...Having given examples of what could be done that honest citizens may go about their AFFAIRS IN PEACE, but in all things, (i) ...He is not the servant of anyone save of the Law itself; (ii) ...No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; (iii) ...That he must, or must not prosecute this man or that one; (iv) ...Nor can any Police Authority tell him so; (v) ...The responsibility for Law enforcement lies on him; (v) ...He is answerable to the Law and the Law alone” [Para. 52].
THE AG’S EVIDENCE
Speaking to the issue of an agreement, “...binding or unconditional, the contentious Phase 2 Agreement” had occupied the Law Lords attention as they opined “...As for the Attorney General’s evidence, the Board accepts, that as a matter of principle, what he says happened at the Cabinet meeting on 16 May, 2006 is admissible on the issue of what was decided at the meeting. Seemingly, found contradictions and/or inconsistencies, they stated “...However, when one turns to the transcript of his evidence before Justice Thomas, IT DOES NOT HELP” [Para. 48]. The Attorney General, scholarly and of high repute with noble intentions, appeared to have been “...caught napping.” Inferentially, out of institutionalized expediency, he may have unwittingly or inadvertently compromised his professional integrity.
Some positions necessitate understanding of the environment in which holders interfaced with others. Some situations also demand that keen attention shall be paid to details, that future reference and/or articulation may be seen as consistent with factuality and truthfulness. This may help to avert personal, official and/or judicial embarrassment. ‘IT IS WRONG.’ That was the conclusion of the Privy Council. Though such may not have been the intention of the Law Lords, they appeared to have been somewhat circumspect when they stated “ ...The Attorney General said that at the 16 May meeting, (i) ...Cabinet never approved Phase 2; (ii) ...He was waiting for more ‘TECHNICAL’ and financial information before he could advise Cabinet.” With clear sarcasm, if not scoffing at the evidence, they opined “...As to the second aspect, it is reflected in Paragraph 98 of the Minute, but it does not address the issue of the approval recorded in Paragraph 97; ...At best, the first aspect represents ‘HIS VIEW’ of the decision minuted at Paragraph 97 (1) and it is WRONG” [Para. 48].
THE NATIONAL ANTHEM
In the context of national identity, building, the National Anthem of Antigua and Barbuda speaks to a unifying spirit and that which its people have always cherished- “...a democratically administrated society of free men and women.” Thus, when author of the national anthem wrote that all may “...Dwell in love and unity,” he was in fact setting out basic tenet of patriotism and that which supports the founding constitutional principles by which citizens, institutions and State ought to interact with each other [Novelle Richards: 1981]. In the real world, however, “...the unpredictable nature of man, his selfish motive and deceptive exploits; ever seeking to commit egregious and/or acrimonious acts against his fellowmen,” these have made such proposition for mutual understanding and co-existence virtually impossible.
Notwithstanding, there appeared to have been a certain consciousness within the inner recess of the author’s mind in seeking “...God’s intervention and guidance” that the people may be so inspired in making Antigua and Barbuda evolved into a “...Model Nation.” Demonstrating a steely resolve, tenacity and fighting spirit, evidenced by deeds of kindness and love of humanity, this was achievable through God’s blessings that might be bestowed upon its people. Consequent upon the need to be law abiding, aggrieved parties have often resorted to the judicial institutions for redress and civil satisfaction, as opposed to taking matters into their own hands.
RULE OF LAW
The building of a “...Model Nation and “...Dwelling in love and unity” are achievable, only to the extent that there was “...national cohesiveness; ...a deep sense of purpose, commitment and patriotism.” Additionally, these were to be complemented with democratic principles, with an independent, efficient and effective Judiciary at work. Equally of importance, there shall be the prevailing “...Rule of Law.” However, it was to be seen that in daily human interactions, life has brought with it “...myriad social, economic and judicial problems. This was so, as man continues to perpetrate evil; exploiting people and situations, capitalizing upon their vulnerabilities, leaving many in misery. Infrequently, fate was known to have brought about their demise and/or destruction. These have always been the human experiences.
SHANIQUE MYRIE CASE
In the regionally highly publicized case, the controversial litigious proceedings were duly instituted by Jamaican national and visitor ...Shanique Myrie 25, against Barbados Immigration. The litigant had alleged inter alia, “...procedural irregularities, inhuman and/or degrading treatment- being subjected to “... discrimination and an embarrassing female cavity search,” supposedly for something other than “...an egg of fertility.” Jamaica had been listed internationally as a “...high-risk destination.” Thus, every passenger, whether air or by marine travel, necessarily comes under official scrutiny. Invariably, those with noble intentions and who may have been treated as “...bona fide visitors,” were known to have been caught up in questionable activities. Except for some obscure reasons, it was unclear why an Immigration officer would conduct such search, as opposed to “...Customs and/or Law enforcement officials” for obvious reasons. This may very well be proved doubtful.
Though Shanique Myrie may not have been so caught, the CCJ had, nonetheless, entertained her application in seeking inter alia“...compensatory and punitive damages” for her experiences. The media reported that in his submissions on behalf of the Barbados Government, Roger Forde QC, submitted that the Jamaican who was declared “...an undesirable visitor” had not passed the test of “...CARICOM Free Travel Initiative (CFTI) when she disembarked for entry into Barbados on March 14, 2011.” Dependent upon the judgment, the legal redress sought was estimated to run into “...one million Barbados dollars.” [Jamaica Observer: April 10, 2013]. Issues such as these were usually seen by regional integrationists as determinants for “...Segregation” of people and nations.
Evidence of a “...Fragmented Mentality” among the regional leadership may have been seen from the fate of the West Indies Federation [1958-1962]. Research showed that after disagreements over, inter alia, “...Headquarters; ...Leadership; ...Resources and Taxation,” a Referendum held by Jamaica precipitated its virtual collapse in 1962. Both Trinidad and Tobago and Jamaica, appeared well economically positioned, resourced with “...Citrus, Bauxite and Oil industries.” Thus, when Jamaica withdrew from the Federation Trinidad and Tobago subsequently followed, leaving the “...smaller, vulnerable and minimally resourced territories dangling precariously from the “...fruit-bearing banana plants,” not necessarily for its viability, sustainability or prosperity, but primarily for the individual economic survivability of their indigent populations. This had reportedly prompted the Trinidad and Tobago Prime Minister Dr. Eric Eustace Williams to say “...1 from 10 leaves “...0” [Wikipedia: 1911-1981].
There was no doubt that even today, similar mentality exists among regional leaders in fully embracing the Caribbean Court of Justice (CCJ). Hence, even with the legal adeptness of its distinguished President Sir Dennis Byron and competent adjudicating team, such mentality could impact negatively on a continuum for the acceptance by regional people and its effectiveness as it embarks on its seemingly ambitious, yet significant judicial course. Consequently, its total embracement by suspicious territories, might be known, dependent upon the “...long awaited Shanique Myrie Civil Judgment,” proposed to be delivered through “...Video Conference” from its Port-of-Spain Headquarters on October 4, 2013 [Nation News: July 27, 2013]. Whomever, the Judgment was seen as adverse such will never reach the Chambers of the London Privy Council for appellate considerations. Thus, an adverse decision against the Claimant, may affect overwhelmingly, regional embracement of the CCJ as the “...Final Appellate Court."