The end of the Caribbean Court of Justice? On failed constitutional referendums in Grenada, and Antigua and Barbuda

With the failure of the constitutional referendums in Grenada and Antigua and Barbuda to replace the British Judicial Committee of the Privy Council (JCPC) with the Caribbean Court of Justice (CCJ), the Caribbean has confirmed the region’s reputation as the graveyard of referendums. Crucially, the failure may signal the beginning of the end of the CCJ. The only lifeline may lie with the Privy Council refusing to hear appeals from the region, which is unlikely to be forthcoming – writes Dr O’Brien.

Introduction

In constitutional referendums held simultaneously on the Caribbean islands of Antigua and Barbuda, and Grenada on 6 November 2018, their citizens rejected a proposal to replace the JCPC with the CCJ as their final court of appeal. In the case of Grenada, this is the second time within the space of two years (the first being in November 2016) in which the proposed substitution of the CCJ as its final appellate court has failed.

This piece discusses two issues that emerge from these failed referendums. The first concerns the regional standing of the CCJ. The second relates to the implications for constitutional reform more generally in those countries in the Caribbean region with strongly entrenched constitutional provisions which can only be amended by means of a (super)majority vote in a referendum. This includes most of the countries in the region; only Barbados, Belize, and Trinidad and Tobago have constitutions which do not include such strongly entrenched provisions.

The regional standing of the CCJ

The CCJ opened its doors for business in 2006. Its supporters claimed, among other things, that it would improve access to justice for the region’s citizens by making it easier and cheaper to bring appeals to a final appellate court located in the region rather than having to go all the way to the JCPC in London, and that it would ‘close the circle of independence’ by vesting ultimate legal sovereignty in a regional Caribbean Court as opposed to a distant imperial court. There was also a very specific claim that, in contradistinction to the JCPC which was composed largely, if not exclusively, of British judges, it would develop a ‘distinctively Caribbean jurisprudence’ being composed almost entirely of judges drawn from the region.  Local judges would not only be more representative of the region, they would also be better able to reflect Caribbean political and social mores. As that doyen of Caribbean constitutional scholarship, Simeon McIntosh, declared:

[S]o long as we remain the ‘subjects’ of the British Crown with its Judicial Committee as the apex in the hierarchy of our legal system, it is to be expected that our constitutional discourse would reflect a cluster of values, intellectual orientations and practices that carry a distinct British cast…Our constitutional conversation is carried out in a ‘foreign’ voice. We are either silenced or are constrained to speak within the institutions and traditions of interpretation of the colonial constitutions that have been imposed on us.

Compelling as this argument is, it has not been enough to convince a majority of the citizens of Antigua and Barbuda and Grenada to vote for it in the referendums held in their country. In Grenada, where the turnout was very low (28%) - presumably reflecting the fact this was the second referendum on the same topic within two years - the numbers for and against replacing the JCPC with the CCJ were almost identical to the numbers in the 2016 referendum. Just over 45% of citizens voted in favour of the CCJ and just under 55% of citizens voted to retain the JCPC. In Antigua and Barbuda, the turnout was slightly higher (33.5%) and the numbers in favour of replacing the JCPC with the CCJ were similarly slightly higher; just under 48% in favour as opposed to just over 52% voting to retain the JCPC. In neither country was there even a simple majority in favour of the CCJ, let alone the two thirds majority required for constitutional referendums by each Constitution.

In neither country was there even a simple majority in favour of the CCJ, let alone the two thirds majority required for constitutional referendums by each Constitution.

The result of these referendums means that some 12 years after the CCJ first opened its doors for business, it hears appeals from only four out of the twelve independent countries in the region: Barbados, Belize, Dominica and Guyana, each of which was able to replace the JCPC with the CCJ without the need for a referendum. The Prime Ministers of both Grenada and Antigua and Barbuda have made it clear that they have no intention of holding another referendum on this issue in the foreseeable future. Accordingly, the CCJ can only extend the reach of its appellate jurisdiction if one or more of the remaining six independent countries ratifies its appellate jurisdiction.

Of these six, St Vincent and the Grenadines failed in 2009 to secure the support of even a simple majority of its citizens, let alone the two thirds majority needed for such a constitutional reform, after a lengthy and very divisive referendum campaign. Though the Prime Minister, Ralph Gonsalves, has indicated that he would be willing to try again, this was on the condition that he had the support of the Opposition New Democratic Party, which has not as yet been forthcoming.  In the case of St Lucia, the Eastern Caribbean Court of Appeal declared some five years ago, in 2013, that there was a drafting error in its Constitution and that it would be possible, therefore, for St Lucia to ratify the CCJ’s appellate jurisdiction by means of an ordinary legislative majority. However, the Prime Minister of St Lucia has recently declared that: ‘Unfortunately, we have a lot of other issues that we are dealing with right now. And so, while [the CCJ] is a critical issue, it is not one of our priority issues at this particular moment.’ A similar sentiment has been echoed by the Prime Minister of St Kitts, Timothy Harris, who recently asserted that joining the CCJ was not a priority for his Government. The Bahamas is an even less likely candidate for ratifying the appellate jurisdiction, having failed to contribute to the Trust Fund establishing the CCJ and having refused to ratify even its original jurisdiction to interpret and apply the founding treaty of the Caribbean Single Market and Economy, the Revised Treaty of Chaguaramas, a jurisdiction which has been ratified by all of the other independent countries in the region.

The CCJ hears appeals from only four out of the twelve independent countries in the region.

This leaves Jamaica and Trinidad and Tobago, the two most populous countries in the region and the largest contributors, by some margin, to the Trust Fund establishing the CCJ: between them Jamaica and Trinidad and Tobago have contributed almost 57% of the total Fund. Jamaica has already tried once to replace the JCPC with the CCJ and failed; the JCPC having held in Independent Jamaica Council for Human Rights (1998) v Attorney General Jamaica that the attempt of the Peoples National Party, whilst in  government,  to abolish the right of appeal to the JCPC on the basis of a simple legislative majority was unconstitutional because it did not comply with the procedure for amending the entrenched provisions of the Constitution. The Jamaica Labour Party has interpreted this decision to mean that any amendment to the Constitution that involves the removal of the right of appeal to the JCPC must first be approved by a majority of voters in a referendum. Thus a stalemate has been reached between the two main political parties in Jamaica as to the correct procedure for amending the Constitution, and this makes the likelihood of implementing any such reform in the foreseeable future quite remote. A similar stalemate appears to have been reached in Trinidad and Tobago, the seat of the CCJ, where the People’s National Movement, which won the 2015 elections, has announced that it is committed to ratifying the CCJ’s appellate jurisdiction. However, it cannot secure the necessary two-thirds legislative majority required by the Constitution without the support of the opposition United National Congress, led by Kamla Persad-Bissessar, and she has previously made it clear when she was in office that she would not support any such reform unless it had first been approved by a majority of voters in a referendum.

Constitutional reform more generally

The case for replacing the JCPC with the CCJ is a very compelling one and if a majority of citizens cannot be persuaded to vote for such a reform it is difficult to imagine which, if any, other constitutional reforms they would support. As the Prime Minister of Antigua and Barbuda, Gaston Browne, declared, following the announcement of the referendum result:

It is unlikely that any government will, in the circumstances, and in the absence of political maturity and magnanimity pursue any further constitutional reform in the near future.

The note of resignation in this declaration reflects the fact that the referendums in Antigua and Barbuda and Grenada are merely the latest in a long line of failed attempts by governments in the region to secure the necessary majority in a referendum to implement their proposals for constitutional reform. In addition to the referendums in Antigua and Barbuda and Grenada, there have been six constitutionally mandated referendums in the post-independence era: in Guyana in 1978; in Nevis in 1988; in The Bahamas in 2002 and again in 2016; in St Vincent and the Grenadines in 2009; and in Grenada in 2016. Out of the eight constitutionally mandated referendums held in the region since independence in only one of them has a government been successful in securing a majority for its proposals for constitutional reform, and this was the 1978 referendum in Guyana, which is widely suspected to have been rigged by the then ruling party, the Peoples National Congress.

Out of the eight constitutionally mandated referendums held in the region since independence in only one of them has a government been successful.

There are many factors at play in determining the outcome of a referendum but the one common denominator in the region is political partisanship and a culture of political tribalism and political adversarialism that has much to do with the ‘winner takes all’ nature of the Westminster model of government that prevails in the region, rather than the perceived objections to the recognition of the authority of the CCJ. Bishop, for example, lays much of the blame for the failure of the 2009 referendum in St Vincent and the Grenadines at the door of the opposition New Democratic Party, which had initially supported the constitutional reform project initiated by the Government. More recently, in Grenada, the Government had won an outright majority in the elections which were held only eight months prior to the referendum, achieving a complete sweep of the 15 seats in the House of Assembly, but still could not achieve an outright majority in the referendum without the support of the opposition, National Democratic Congress. While the latter had originally been in favour of replacing the JCPC with the CCJ, it withdrew its support shortly before the referendum, encouraging voters to say ‘No’. In Antigua and Barbuda too, where the Government had enjoyed considerable success in the most recent elections in 2018, winning 15 of the 17 available seats in the legislature, the opposition party failed to support the government’s efforts to persuade its citizens to vote in favour of the CCJ. According to the respected political commentator, Sir Ronald Sanders, the principal objective of opposition politicians in both Antigua and Barbuda and Grenada was ‘to give the governing party a bloody nose’.

The inclusion of referendum requirements in the Caribbean’s independence constitutions reflected the British Government’s determination to prevent swift constitutional overhauls as happened in post-independent Ghana.

The rationale for the inclusion of a procedure for amending a constitution is the need for constitutions to adapt to changes in society. Over an extended period of time constitutions may no longer adequately meet the needs of the society for which they were designed or may embody principles that have long since been rejected by that society. At least in those countries in the region where constitutional reform hinges on securing a majority in a referendum, the amendment procedures would not appear to be achieving their intended objective.  The result has been constitutional stasis, bordering on constitutional stagnation. The prospects for future constitutional reform are even gloomier, if that were possible, in those three countries in the region which require a two thirds majority in a referendum in order to amend the most deeply entrenched provisions of their Constitution: Antigua and Barbuda, Grenada and St Vincent and the Grenadines.

The prospects for future constitutional reform in the region are gloomy.

The inclusion of referendum requirements in the region’s independence constitutions reflected the British Government’s determination to preserve the Westminster model of government and the protection of fundamental rights in the post-independence era, having been alarmed by Kwame Nkrumah’s actions in Ghana in enacting a new Constitution with a presidential system of government within three years of independence. The super majorities required in the case of the three countries was a further reflection of just how much the British Government distrusted their independence leaders whom they regarded as ‘firebrands’. The prospect of attaining such a high majority appears to be completely illusory. As the Prime Minister of St Vincent and the Grenadines, Ralph Gonsalves, acknowledged at a conference in Jamaica in 2014, reflecting on the failure of the 2009 referendum in his country, the idea of achieving a two thirds majority was always completely unrealistic. Nevertheless, he pressed ahead with the referendum in the hope that by achieving a simple majority he would be able to persuade the British Government to amend St Vincent’s Independence Constitution in the same way that it had been created, i.e., by an Order-in-Council of the British Privy Council in the name of the Queen.

Conclusion

The results of the Antigua and Barbuda and Grenada referendums are obviously a bitter disappointment to the CCJ and its supporters and have dealt a massive blow to the CCJ’s aspiration to be a representative regional court, dispensing a distinctively Caribbean jurisprudence. Currently, and for the foreseeable future, the CCJ’s jurisdiction extends to only four countries with a combined population of just under 1.5 million. The combined population of the eight countries that continue to subscribe to the JCPC’s appellate jurisdiction far exceeds this figure, being just under five million.  Camillo Gonsalves, the son of the Prime Minister of St Vincent and the Grenadines, estimates that this imbalance in the respective jurisdictions of the CCJ and the JCPC will last until at least 2030, which must cast some doubt on the CCJ’ sustainability. For how long will the region’s governments be willing to fund a court when their citizens cannot access its appellate jurisdiction? Even one of its most ardent supporters, Sir Ronald Sanders, has been forced to acknowledge that the CCJ’s best hope of becoming a final appellate court for the entire region rest on the JCPC refusing to hear appeals from the remaining eight countries in the region which continue to subscribe to its jurisdiction. This is, at best, however, an extremely faint hope. While it is true that Lord Phillips, a former President of the Supreme Court of the UK, has complained about the amount of time Britain’s most senior judges spend on JCPC cases, his proposed solution was not to end appeals to the JCPC, but rather to enlist judges from the Court of Appeal to help out with JCPC cases.  Nor has there been any indication from the British Government that it is intending at any point to end appeals to the JCPC. 

It is, however, the implications of the referendums in Antigua and Barbuda and Grenada for constitutional reform in the region more generally that ought to be of the greatest concern.  As noted above, these referendums conform to a widespread pattern of failed referendums across the region since independence. In such circumstances, it will be a very brave government indeed which will be willing to expend its political capital in attempting to secure approval in a referendum for constitutional reform when the chances of a successful outcome are somewhere between slim and nought. If this prediction is right, these constitutions may remain crystallised in perpetuity.

Derek O’Brien is currently a Senior Lecturer at the Truman Bodden Law School in the Cayman Islands