PM Wants Opposition Agreement On CCJ PM Wants To Avoid Referendum DV Mirror 29.06.2013) Is the government seeking refuge in the OECS Supreme Court because it feels intimidated by the constitutional and political challenges of conducting a referendum at this time? It does not presently have a three-quarters majority of elected parliamentarians and the chances of a referendum losing focus in the current economic downturn are very real. Prime Minister, Dr. Kenny Anthony, in an exclusive interview with The Mirror, says the responsibility of his government is to obey the Constitution by following the route prescribed for amending the Supreme Court Order. “If we can avoid a referendum, clearly it is in the interest of the country,” he says. “A referendum is an expensive business and, as you well know, our political parties, because of opportunism sometimes, do not all join hands on an issue of a referendum. The history of referenda in the Caribbean has not always been a good history.” Legislation allowing the Government of St. Lucia to adopt the Caribbean Court of Justice (CCJ) as the final arbiter of legal matters will be laid before parliament, hopefully with the support of the opposition, Dr. Anthony says, although he gave no immediate time frame for St. Lucia’s transition from the British Privy Council to the CCJ. The government anticipates challenges to a May 24 ‘opinion’ by the OECS Court of Appeal, which effectively says St. Lucia does not need to have a national referendum to break with the Privy Council. But though the government would welcome any legal challenges to that opinion, those willing to contest the ‘opinion’ will have to do so at their own financial expense. Once the legislation is enacted, it is possible for the legislation to be contested, Dr. Anthony concedes, adding that it is possible that those who challenge the opinion will argue the legislation enacted by the government is unconstitutional, and return to the Court to get a declaration to that effect. “Obviously, if that is done, then the government would have to respond,” Dr. Anthony says. But Dr. Anthony assures that his government does not intend to go further with the Court of Appeal opinion “before all processes are completed.” So far the only semblance of a challenge has come from the St. Lucia Bar Association, which says it has referred the OECS Court’s opinion to “eminent counsel’ in Britain. Prime Minster Anthony, who specializes in Constitutional Law, says he subscribes to the view that the constitutional move to the CCJ must be done well, but there must be a correct interpretation of doing it right. He says the Appeal Court has given an interpretation of what is right, meaning that the Constitution never intended the route that the other side may have assumed was the correct route. “I have no doubt in my mind that the (Appeal) Court is correct because the problems is for the detractors to explain why is it that there is one constitution in the Eastern Caribbean (Dominica) that has the correct reference and the correct wording? Why the reference in respect of that constitution and not in respect of the St. Lucia Constitution?” Dr. Anthony asks. “In fact Dominica can proceed to join the Caribbean Court of Justice as it is now, given the provisions of their constitution,” Dr. Anthony says. “So I think that is one of the major problems that those who believe that there is no error have to face as they analyse the provisions and as they argue for the retention of the Privy Council.” The Appeal Court ‘opinion’ means that “the Government of St. Lucia will lay before parliament legislation to accede to the Caribbean Court of Justice,” Dr. Anthony says. “Obviously, I would prefer if the legislation was supported by the opposition, given the fact that the former Prime Minister, John Compton, made pronouncements supporting the Caribbean Court of Justice,” he says. “Of course, there are people who are interested in invoking his (Compton’s) history for different purposes.” Dr. Anthony recalls that Sir John made statements in opposition supporting accession to the CCJ. The May 24 ‘opinion’ delivered by Chief Justice, Dame Janice Pereira, and supported by Justice Louise Blenman pointed to a “typographical error” in a reference to a section of the St. Lucia Constitution dealing with amendments to the Supreme Court Order. However, the third judge on the Appeal Court panel, Acting Justice Don Mitchell, dissented, saying, “In my view the reins tighten when the request is to find an error in a constitutional provision requiring democratic participation by referendum to correct it to say that the provision merely requires approval by legislature, and not by the people.” Dr. Anthony does not agree with the opinion expressed by Justice Mitchell, but says he refrains from commenting on opinions of judges, though he has private intellectual and academic opinions of the judgment. “I have in my time seen many judgments which I think are very wrong,” he adds. “Equally, many judgments I have seen are very correct. Suffice it to say that I do not agree with the interpretation of the dissenting judgment, but I will not say more than that or add anything to that by way of further commentary.” According to him, the May 24 opinion of Appeal Court is an advisory opinion, which means that it is not a legally binding view of the court, not is it a judgment. “We use the route of an advisory opinion to generally get a point of view from the Court of what would happen if, of course, there is likely litigation,” he says. “The government can ask the courts, where there is uncertainty, that the government needs to have a reasonable assessment of the issues before it and the likely outcome, if the issues are contested.” Regarding a suggestion made in an earlier issues of this newspaper that the people who were part of the constitutional talks more than 34 years ago be opportunity to state an opinion on the provisions under discussion, Dr Anthony cautions that constitutions are to be interpreted by courts, not by lay persons, or persons with historical memory. Even if they give their historical interpretation, it is for the courts, in the final analysis, to say what the words of the Constitution mean. “The historical records of the discussions surrounding the Constitution are available and there are some individuals who have made reference to these individual records,” he says. “Of course, some people have spoken about conversations that they heard and what politicians intended, and what politicians said. But what politicians intended and what politicians said in a historical period is not necessarily what is in the written language of the Constitution. These are very different things. So while it is good debate, good commentary, good historical discussion to refer to these discussions, it is certainly a different thing when it comes to the written language of the Constitution. The other thing is, I don’t know whether many of these (English) civil servants who participated in the discussions in 1978 are still alive.” Two of the members of the St. Lucia delegation to the talks in Britain are still alive. They are veteran lawyer Evans Calderon and former foreign affairs minister, Peter Josie, both of whom were on the then opposition St. Lucia Labour Party side of the delegation. Calderon has said in an earlier issue of this newspaper that he opposes the move from Privy Council to CCJ, and Josie has since parted company with the Labour Party. Dr. Anthony tells The Mirror that “there would be a thousand reasons why I would be exceedingly weary of Peter Jose’s interpretation.” He said the Constitution does have a clear mechanism for the amendment of the Supreme Court Order and that errors in constitutions do occur sometimes, including spelling errors, and it is not unknown for a court to intervene when this occurs. On the suggestion that the discovery of an error in such an important provision of the Constitution is a cause for public disbelief, Dr Anthony argues that there was no reason to focus on those sections on the Constitution before because the issue of appeals to the Caribbean Court of Justice only became a recent issue with the incorporation of the Court. There are provisions of a Constitution that will be ignored over time because issues never arise over these provisions. But when they do arise and it is time to give the Constitution, or any other document for that matter, a very clinical look, then those errors would be discovered.
Posted on: Mon, 01 Jul 2013 17:48:24 +0000
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