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Commonwealth Regional Courts: An appraisal

Introduction

There appears to be a growing interest in the establishment of an international judicial forum to protect the core values of the Commonwealth of Nations reflected in its Charter and various Declarations. We would like to clarify at the outset that neither the Commonwealth Charter nor any one of its Declarations provide for the creation of an international tribunal notwithstanding the fact that the Commonwealth expresses its commitment towards promoting international peace and security. To avoid unnecessary political and judicial controversy on the subject, we need to also clarify at the outset that any proposal in this regard would most likely be acceptable only if it advocates the establishment of an international or regional forum having jurisdiction over international legal matters rather than an appellate forum having jurisdiction over matters within the exclusive domain of national laws.

There is presently no International Dispute Settlement Forum in the Commonwealth similar to the African Court on Human and Peoples’ Rights, East African Court of Justice, Caribbean Court of Justice, Economic Court of the Commonwealth of Independent States, European Court of Justice, Inter-American Court of Justice, and other such forums. In comparison, there exists such an appellate forum at the national level. For example, the Judicial Committee of the Privy Council acts as a final Appellate forum for several Commonwealth member states. The appeals filed before the Judicial Committee of the Privy Council are filed by individuals, corporations or Governments in respect of or relating to the internal affairs of the State. These appeals do not deal with “international” or “intergovernmental” matters which may affect individuals, peoples or relationship between Governments. It has been suggested that this task could also be handed over to the Judicial Committee of the Privy Council by appointing Judges from various member states and extending its jurisdiction to inter-governmental and inter-state matters.

The members of the Commonwealth are politically diverse despite the fact that they share a common legal heritage. After having broken free from the shackles of colonialism, these members are unlikely to accept an appellate forum that is perceived to compromise their political sovereignty or judicial independence. The members would, in our view, be far more amenable to accept the concept of regional courts than conceding their jurisdiction to an appellate forum like the Judicial Committee of the Privy Council notwithstanding the proposed induction of judges therein from other countries.

We will for the purpose of finding a practical proposal, therefore, limit our present discourse to providing an assessment of regional courts worldwide with a view to suggesting something similar for the Commonwealth of Nations.

Regional Courts

Regional courts have generally sought to protect human rights and the rule of law in various regions of the world. Their efforts have been linked to the institutional protection of legally enforceable rights and guarantees. Lessons from regional courts suggest that they become active engines of integration if two conditions are present. First, and most important, there must be legally binding regional rules that create rights and obligations for private parties. This allows private parties to sue and be sued on the basis of international law. Second, there must be an institutional configuration that allows private parties access to a regional court.

The impetus for formation of these courts has been different for different regions spanning the Commonwealth world, and one could imagine that these have been the vestiges of the colonial past, albeit with regional compulsions of economic efficiency, peace and trade. It is essential to understand that although we are bound together by our common past today, modern world has thrown each one of our nations into challenges of different nature, and a study of how groups amongst us have sought to mutually resolve the disputed questions of legal interpretation would reveal that there is common ground for improvement.

African Court on Human and Peoples’ Rights

On June 9, 1998, in Ouagadougou, Burkina Faso, the Assembly of Heads of State and Government of the Organization of African Unity (OAU) adopted a Protocol to the African Charter on Human and Peoples’ Rights: Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, June 9, 1998, OAU (“Protocol”). The Protocol, signed by thirty of the fifty-two Member States of the OAU establishes an African Court on Human and Peoples’ Rights to supplement the existing protections afforded by the African Commission on Human and Peoples’ Rights.

We have to remember that the OAU was born “in a context of nearly untrammeled state sovereignty, in which heads of states sought sedulously to safeguard the independence so recently won.” Therefore, we have to welcome the progressive and positive development of the African Court on Human and People’s Rights in the restrictive environment in which both the Charter on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights came into existence.

Several aspects of the Charter have drawn heavy criticism for their tendency to dilute the human rights protections enshrined therein. Particular attention has been drawn to the so-called “claw-back” clauses in the Charter and to the lack of effective enforcement mechanisms. Ironically, both of these aspects allow governments to effectively ignore the Charter’s human rights mandate by resort to the very Charter itself. The “claw-back” clauses in the Charter, for instance, permit the routine breach of Charter obligations for reasons of public utility or national security and confine many of the Charter’s protections to rights as they are defined and limited by domestic legislation. This effectively allows governments to determine the scope of human rights protections themselves.

Furthermore, as a powerful Commission might challenge the credibility of African political leaders in their respective countries, the OAU Heads of State were reluctant to grant the Commission a significant role in protecting human rights. The Commission was envisaged almost exclusively as a body to promote human rights. It cannot award damages, restitution or reparations. It is not empowered to condemn an offending State; it can only make recommendations to the parties. It was, and still is, vested with very few powers. Consequently, blatant disregard of the Commission’s recommendations, orders, and pronouncements by Member States has become the norm in Africa, a situation acknowledged regretfully by the Commission.

The mere establishment of the African Court will, of course, not end human rights abuses in Africa overnight. It will, however, strengthen the regional human rights system as a whole, provide an important deterrent to human rights abuse, and help to further build a strong human rights culture in Africa. With the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, the African human rights system now joins the ranks of the European and American systems. No more can human rights breaches be swept under the carpet as internal affairs in Africa.

East African Court of Justice

The East African Court of Justice, marking its 12th year since inauguration on 30th November 2013, is not peculiar to the global efforts of consolidating the democratic principles and rule of law . Consisting of two divisions, a First Instance Division and an Appellate Division, the Court is a judicial body tasked to ensure adherence to law in the interpretation and application of and compliance with the East African Community Treaty of 1999 . This period of its existence offers us a special opportunity to take stock of its performance which inevitably is characterised by successes and challenges.

The Court is tasked with the peaceful settlement of disputes, adherence to principles of democracy, the maintenance of the rule of law, promotion and protection of human and peoples’ rights. Also worth mentioning is the fact that the East African Court of Justice can constitute itself into an arbitration tribunal.

The success of the Court can be realized by the numerous and vital achievements it has made. Formulation of the Rules of Procedure and the Rules of Arbitration was the first activity that the Judges embarked on immediately after being sworn in. This was so because the Court considered it crucial for the stakeholders/litigants to know the procedure of approaching the Court . The Court is accessible by a range of stakeholders from State level to a simple individual. In tandem, with the philosophy of accessibility and desire to bring services near the people, there are Rules of Procedure to establish sub-registries of the Court at such places in the Partner States as the President of the Court may from time to time direct. This kind of arrangement has proven to be very efficient with the Caribbean Court of Justice where Supreme Court registries of the member states are ipso facto its sub-registries . Thus Council of Ministers in November 2010 approved the Court’s request to establish the Sub-registries, one in each capital of the Partner States.

Similar to the problem faced by national courts, delay of justice is endemic. Delay in justice has taken many different forms in the region e.g., granting of ex-parte orders by the Court, unnecessary adjournments of hearing, and unlimited period within which to pronounce the judgment after concluding the hearing. Vast challenges are still faced by the Court despite the fact that the Court has taken into considerations all the concerns when formulating its rules of procedure that govern litigation in it. “No Jurisdiction” and “Sovereignty” syndrome is a continuous dilemma faced by The Court . It has increasingly become a standard practice and routine matter in the Court whenever a matter is filed against any of the EAC Partner States that the attorneys raise preliminary objections on the jurisdiction of the Court to entertain the matter. At one time, the Court’s ruling that it had jurisdiction led to the amendment of the Treaty. It appears that the Partner States still wish to remain sovereign while they subscribe to the integration objectives that require them to cede a certain amount of their sovereignty. This state of uncertainty being expressed by the Partner States is not healthy to the integration agenda.

It is very important that Partner States build trust and strengthen the EACJ the regional judicial body charged with resolving community disputes in the region. It is evident how the EACJ has performed its functions and the potential it has in ensuring adherence to the rule of law; but it is not given sufficient jurisdiction and in some instances the little jurisdiction it has is systematically taken away. However, for integration process to succeed in East Africa there has to exist an independent and free system that will remedy violations and above all political willingness of those in power to abide by decisions of those given the sacred duty of redressing injustices. The Court interprets and applies the Treaty provisions for the achievement of the EAC objectives and not for purposes of pleasing any of the interested stakeholders.

Development of regional jurisprudence is one of the most encouraging aspects of the establishment of the EACJ. While the legislative and executive organs are working towards the creation of enabling environment for the political integration to be a reality by enacting community laws and adopting policies of the implementation of these laws, the judicial organ of the Community is playing the crucial role of interpreting the Treaty and other Community laws and in ensuring respect for the founding principles of the Community.

Caribbean Court of Justice

The nations of the Commonwealth Caribbean have also created regional institutions that serve to promote and protect the new supra-national order established by them. One of the institutions that cements the regional alliance among the Commonwealth Caribbean states is the Caribbean Court of Justice .

However, at the centre of the judicial system in the Commonwealth Caribbean lies the English Judicial Committee of the Privy Council. The Privy Council is an institution that became established as the final court for the individual countries during the era of colonialism. The Privy Council was instituted under the premise that the King is the fountain of all justice throughout his Dominions. It exercises appellate jurisdiction and acts in an advisory capacity to the Crown. During the colonial era, the King exercised final appellate jurisdiction over all colonies and territories. In the case of the West Indies the services of the Judicial Committee were requested as a relief from the decisions of the local courts .

By the end of the nineteenth century, and as the English dominion expanded, the Privy Council had jurisdictional power over more than a quarter of the globe. It had earned the distinction of being respected as a court of great skill, erudition and versatility . Notwithstanding that, as the era of colonization came to an end and the British territories obtained their independence; the services of the Privy Council were no longer required by the sovereign nations. In 1931, the Statute of Westminster enabled the then independent Dominions to abolish the appeal to the Judicial Committee if they so wished, and in the 30 years following the end of the Second World War the great majority of the other overseas territories of the Crown became independent. India gave up the supra-national appeal process upon achieving independence in 1947 and then came the gradual winding down of appeals from Sri Lanka (Ceylon), Africa and Australia. The appeal from Malaysia was abolished in December 1984 and from the Australian States in March 1986. Singapore abolished the appeal in 1994. The appeal from Honk Kong came to an end on 30 June 1997 on the cessation of British Sovereignty over the territory and the appeal from Gambia ended in 1998. In the case of the Caribbean, however, (with the exception of Guyana) the Privy Council maintained its jurisdiction at the request of the region. Since then, the Privy Council has rendered its services to the Caribbean gratuitously and continues to do so to this day perpetuating the colonial status of the Caribbean islands .

The establishment of the Caribbean Court of Justice assumes political, economic, nationalistic and even emotional overtones and is inextricably bound up with the issues of independence and sovereignty. The nations of the Caribbean are now becoming increasingly aware of the fact that it is offensive to the sovereignty of independent nations and therefore politically unacceptable to have a foreign tribunal permanently entrenched in their constitutions. The retention of the Privy Council as the final Court of Appeal for West Indian jurisdictions is a question, which has occupied the attention of many Caribbean jurists .

We believe, and this is our belief for both the Caribbean and all areas of the commonwealth faced with one or more of the integration issues, that there is a more pressing need for regional jurisdiction because of the global trend to integrate regions of the world. In the case of England, where the Privy Council is located, English law and institutions are progressively intermixed with European Common Market Law. This is another reminder of the extreme urgency for the people of the Caribbean region to proceed to take complete control over their jurisprudential destiny.

Conclusion

In conclusion, we suggest that the African regional court system, despite its assessed weakness that we believe to be a passing phenomenon in the evolutionary process, is an exemplary model for the South Asian countries (namely, Pakistan, India, and Bangladesh) to follow. The South Asian countries need to focus on the development of their regional legal system in order to pursue their mutual interest and benefits. Inasmuch as the jurisdiction and sovereignty syndrome exists in Africa, the Asian Commonwealth nations would most likely face the same concerns, perhaps even to a greater extent. Given the volatile history and unsettled political relationship of these States, it would undoubtedly appear to be difficult to forge a consensus among them to adopt a similar model. However, even if the possibility appears to be remote, given the international trend towards regionalism the journey in that direction is inevitable and has to begin. If we look at the history of the European nations for a moment we realize that, had it not been for the two arch rivals at the time (i.e. France and Germany), there may not have been any European Union, let alone the European Court of Justice and European Court of Human Rights. Learning a lesson from this example, it is asserted that the precarious and highly vulnerable situation that the Asian countries live in presently requires a far more vibrant and concerted approach by the Asian Commonwealth of Nations to ensure peace and security in their region. Topical issues such as human trafficking and terrorism alone warrant immediate action in this regard. The important lesson set forth by the African and European models, suggests that the trend towards the establishment of regional institutions is an incremental process. Pakistan, India and Bangladesh are experiencing increasing cross border challenges such as militancy, terrorism, human smuggling, trade barriers, water disputes etc. These are some common areas of concern that an Asian regional platform for dispute resolution could begin to beneficially address—the sooner the better!