POLITICS-CARIBBEAN: Leaders Remain Deadlocked in Search for Chief Justice

By IPS Correspondents Reprint | | Print |

Patrick Smikle

BASSETERRE, St. Kitts, May 6 1998 (IPS) - Attorneys in the Eastern Caribbean are increasingly voicing their impatience with the sub- region’s Heads of Government over their failure to appoint an Organisation of Eastern Caribbean States (OECS) Chief Justice.

And they are now openly acknowledging what highly placed sources have been telling IPS for several months — that the failure of the Heads to reach consensus on an appointment is the result of deep, often acrimonious political differences.

The statute governing the appointment requires a unanimous recommendation of OECS Heads of Government to the Lord Chancellor in England, and despite four formal meetings, several informal caucuses and intense lobbying, the leaders have been unable to reach a consensus in the 21 months since Vincent Floissac retired.

“In fact he (outgoing Chief Justice) delayed his retirement by several months to allow them to find a successor,” one prominent sub- regional attorney told IPS.

These attorneys are individually, through their national organisations and through the umbrella OECS Bar Association, pushing for current Acting Chief Justice Dennis Byron to be confirmed in the position.

“The attitude of most sub-regional Bar Associations at this point is that they would go for Byron,” one senior government attorney told IPS. He said that up to late last year the Anguilla and Antigua associations had been wavering, “but following consultations it was noted that Byron did not present himself as a problem so why not just go ahead and appoint him.

“We felt that having put the man to act as Chief Justice for almost two years now, how do you just remove him and tell him go back to his substantive post and tell him serve out the next eight years of his judicial life as just being another member of the court,” adds the attorney.

Other sources have been more positive in their endorsement of the Acting Chief Justice.

“He has done an excellent job and should be appointed,” Emile Ferdinand, President of the St. Kitts-Nevis Bar Association told IPS.

Byron has been praised both for his judicial prowess and his management skills. Particular mention has been made of his efforts to modernise the administrative side of the sub-region’s judicial system.

But according to well-placed sources, the government of St. Kitts and Nevis remains adamant in its opposition to his confirmation. One explanation which is repeatedly offered is that his brother, Terrence Byron, also an attorney, is an activist of the opposition People’s Action Movement (PAM) and a confidant of the party’s leader, former Prime Minister, Dr. Kennedy Simmonds.

Current St. Kitts-Nevis Prime Minister, Denzil Douglas, is known to have been pushing for the appointment of Queen’s Counsel, Lee Moore, a former leader of the ruling Labour Party.

That would have almost certainly led to protest from the Opposition. “We felt that Mr. Moore, being so closely aligned to the Labour Party could not, in all honesty, sit on the Court of Appeal to deal with any matter which involved his political opponents,” Vernon Veira, a senior St. Kitts attorney and opposition Senator, told IPS.

“Not that Mr. Moore is not considered a good jurist,” he added. Veira too supports Byron’s confirmation that Moore almost got the job. In fact, after some forceful lobbying by Douglas at an OECS meeting in November 1996, it was announced that he had, but the appointment was blocked by Antigua and Barbuda’s Prime Minister, Lester Bird.

Two explanations have been offered for Bird’s action. One is that he is peeved over uncomplimentary remarks reportedly made by Moore about his party and government. Another is that he is carrying out the wishes of his father, former Prime Minister, V.C. Bird Snr. who had long wanted Byron to get the post.

Bird Snr. had bowed to arguments that Byron needed some more experience and had gone along with the appointment of Floissac, only on condition that Byron be appointed whenever Floissac retired. It is that wish which his son and successor is not carrying out by blocking Moore’s appointment, goes the explanation.

Whatever his reason, Lester Bird managed to reverse support for Moore to the position where by last May’s OECS authority meeting in St. Kitts, only Ralph O’Neal, the Chief Minister of the British Virgin Islands, was supporting the St. Kitts government in its lobbying for Moore.

By the November meeting in St. Lucia, O’Neal was wavering. Now Douglas is said to be completely isolated on the issue.

“It would be most unfortunate if St. Kitts were to go down as the country that opposed the substantive appointment of the current holder (Byron) who is certainly in a position to do the system and the country proud,” says Emile Ferdinand.

Ferdinand and his colleagues throughout the sub-region are also concerned about the broader implications for the administration of justice. He says the failure to appoint a Chief Justice puts the Court in a difficult position.

“Almost every time it sits the Court of Appeal has to make decisions on constitutional matters affecting the citizens and the governments of the sub-region,” he notes. “In the present situation, these decisions, if they favour the government are open to the criticism, unfounded though it may be, that there is an attempt to curry favour with the government.” And if the decision is against the government?

“The Court is open to the criticism that its decisions resulted from the justices being peeved over the government’s failure to make this appointment.”

“And that is a serious concern,” says one attorney. “These guys (the judges) pay attention to what the government is doing.” He cited a case in Antigua where he said judgment against a government MP was delayed until after general elections, “much to the appreciation of the Bird government.”

It was in that context that the OECS Bar Association, at its recent meeting in Dominica criticised the governments over their failure to reach consensus on the appointment.

A statement from that meeting noted “the vital role of an independent judiciary” in West Indian society and of the need to ensure that “the judiciary remains free from even the appearance of control by the executive arm of government.”

The attorneys deplored “the continued failure of the Heads of Government to make an appointment to this crucial constitutional office,” and charged that this failure “seriously undermines the independence of the judiciary and is harmful to the administration of justice.”

The statement called for the appointment to be made as a matter of urgency in order to “safeguard the integrity of the Courts.”

The OECS heads next meet later this month in the British Virgin Islands and in addition to the public statements, much private lobbying is taking place to have Byron confirmed in the position. But there is little optimism about this deadlock being broken.

Already some prominent attorneys in the sub-region are looking to a time when the politicians will have no voice or influence in judicial appointments.

“If we can get the appointment of our judicial officers removed entirely from that arena and have an independent body of people appoint our Chief Justice it would be really remarkable,” says Agnes Cato, President of the St. Vincent and the Grenadines Bar Association.

But she acknowledges that such a development would itself require political action, even constitutional amendments. And that, say other sources, is not going to happen. “These guys (the political leaders) aren’t about to give up any of their power,” a senior government attorney remarked to IPS.

Indeed, he noted, they are about to increase their ability to influence judicial appointments, through the creation of a Caribbean Supreme Court which will eventually replace the Judicial Committee of the British Privy Council as the region’s final court of appeal.

And, acknowledges Ferdinand, the political bickering which continues to attend efforts to find an OECS Chief Justice strengthens the position of those opposed to the proposed Caribbean Court of Appeal.