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EDITORIAL: Still tackling the great debate

You remembered when we asked “what are we going to do when de money gorn”?  It was a question that we asked in relation to the “great debate” surrounding the change to our constitution to allow for the move from the Privy Council to the Caribbean Court of Justice (CCJ) as our final court of appeal.  We asked the question because it is one of the most important issues that was not being discussed.  It has not been addressed in the “education campaign” and it is a question that is glossed over with vague generalities as replies. 

Well, the answer to that question was made clear during a recent visit by the past and present Presidents of the Caribbean Court of Justice, Sir Dennis Byron and Justice Adrian Saunders, as they addressed the Cabinet on the matter.  The justices made it clear that we had reach the proverbial bridge and the financial independence that was guaranteed by the CCJ Trust Fund was less of a guarantee and more of a stop-gap approach.  The long and short of the matter is, the governments will have to top-up the fund in order for the CCJ to have any chance of living in perpetuity.   That bit of news come by way of the the most recent Cabinet briefing notes, which reveal some of the details of the discussions held with Justices Sir Dennis and Saunders.  The notes state, “One of the issues discussed with the Cabinet is the funding of the Court. The $100 million US dollars Trust Fund was designed by actuaries, who assured the CARICOM in 2004 that the fund would serve the beneficiary states without drawdown for at least ten years. That was a very accurate prediction. During the past 14 years, or since 2004, the Court has consumed 1/7 of the capital; the CCJ has spent $70 million dollars in total during the same period. There will be a need to have members top-up the Trust Fund.”

We note the shifting talking points as the politicians spin the situation, because the CCJ’s website talks differently about the Court’s financial independence.  It states, “Concerns have been expressed that the Judges of the Court would be paid by governments which can exert decisive informal pressure on them to deliver judgements favourable to this or that government. In order to pre-empt this eventuality and fund the Caribbean Court of Justice in perpetuity, a Trust Fund of US $100 million has been established, so as to enable the expenditures of the Court to be financed by income from the Fund. In this way, the expenditures of the Court, including the remuneration of the Judges, is not dependent on the disposition of governments.”

There is no talk of actuaries and 10-year predictions.  It speaks of the perceptions of influence and the financial independence of the court in perpetuity.  That means forever!  Now the plans have changed, if what Cabinet says is true, but these new realities are nowhere to be found in public education campaign and are being glossed over in the public debate.  This is just one of many concerns not being dealt with. 

For many on the side promoting the CCJ as our final court of appeal, questioning the anything related to the CCJ is considered a ‘non-patriotic act’ but nothing could be further from the truth.  It is actually very patriotic because, as we have said before, it seeks to engage in a discussion to better the CCJ, on one of the issues that is at the heart of continued independent justice.   We maintain that it does no one any good to ignore the multi-million dollar question: “what are we going to do when de money gorn”?

Now that we have learnt that the CCJ will be going ‘cap in hand’ to each of the territories to continue the funding of the court, we must ask the simple question:  what happens when a territory or territories cannot meet their obligations?  Will the cases from that territory, or those territories, fall to the bottom of the pile?  As we have seen many times before, there will be a feeling that you must “pay to play”.   If you are delinquent as a nation, you cannot expect the same service from the court as nations that are current.  Considering the already strained financial situation of many of the small island states that are expected to join the court, is there some guarantee that their cases will not be pushed aside to prioritise the cases of nations that are current with their obligations to the court?

We doubt than any such guarantee will be forthcoming.  How can the CCJ tell nations that are current with their payments that delinquent nations hold the same priority to the court?  It is likely that we will revert to the same situation that has plagued all of our shared institutions, where those nations that cannot pay will receive inferior services when compared to those that can.  There is one thing to say that our current system of justice is too expensive at the final court of appeal level, but it is quite different to say that it is unavailable, no matter the price, because your country simply had to pick between paying civil servants and funneling money to the final court of appeal.

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