THE EDITOR: The Caribbean Court of Justice has been rejected by Grenada and Antigua-Barbuda in separate referendums in both countries. Regional commentators have attributed this outcome either to a brainwashed colonial attachment to the former mother country or to a distrust of Caribbean governments.
Those people who hold to the former view only reveal their contempt for the judgment of the average Caribbean citizen. As for the latter perspective, this is not a problem which will be eradicated anytime soon. So this leaves the question hanging: what is to be done with the CCJ?
Since most Caribbean countries have not accepted the CCJ as their final court, this means that all the judges and the court’s staff are being paid high salaries for managing an average of one case every 28 months.
This is a waste of money which the regional governments can ill afford, especially now. To continue funding the CCJ under its present remit is not acceptable and there is little the CCJ can do to create public trust in it.
(The argument that the recent judgment in favour of transvestites will bolster confidence in the CCJ’s independence is absurd – after all, given the majority view of Caribbean people on such matters, this if anything will reduce public trust in the court.)
However, there is one way in which confidence in the court can be bolstered while at the same time wastage of governments’ funding can be stopped. Quite simply, the CCJ must be converted to a private court.
This is not as outlandish a proposal as might appear at first blush. There is already precedence in the guise of alternative dispute resolution – ie mediation – which seeks to bypass the state-run courts so that people can save money and get more satisfactory outcomes. A privately-run CCJ would just be an extension and modification of this concept.
How would it work? First, the CCJ would have to split into at least two tiers: an equivalent of the magistrates court and of the high court. This will be necessary in order to generate the amount of work needed to make a profit. A small claims court should also be attractive to prospective clients.
An added benefit to the existence of a private CCJ will be a reduction in the caseload burden on the state courts, especially at the magisterial level.
For a payment which will be set by the CCJ, any Caribbean citizen who has a legal matter can choose to bring his case before the CCJ instead of the state courts, once all parties involved agrees to abide by the court’s ruling.
These payments will not necessarily make the CCJ a more expensive alternative, since this court would be expected to reach judgments far more quickly than state courts, hence reducing legal fees.
The obvious objection is: wouldn’t a private court inevitably end up favouring the richer plaintiff or defendant? This objection is not as robust as might appear, however. For one thing, this same criticism is habitually made of the state courts, and seems to be borne out both by the ability of wealthy people to draw out their cases for decades, as well as the lack of guilty verdicts in cases involving the rich and the politically connected.
However, a private court which appears biased towards the wealthy will soon find that nobody will contract it to hear their cases, since even the wealthy people will not trust the private judges to deliver a fair decision. Thus, unlike the state judiciary, a private court has strong incentives to be impartial. (The only caveat might be that, in criminal cases, sentencing would still be left to the purview of the state judiciary.)
Caribbean governments can start this transition by passing local legislation recognising the CCJ as a private court. In other words, all decisions made by the CCJ would have the same legal force as judgments made by state judiciaries.
The governments can also continue funding the CCJ for the next three years in order to facilitate its change to private status. After that, the CCJ will be run on a for-profit basis.
The alternative is to continue to have an expensive institution whose existence is justified only by some romantic ideology of sovereignty, even as the ordinary Caribbean person continues to reject the CCJ as a trustworthy court.