The CCJ - youthful exuberance or misfeasance and the 'unruly horse'?

Garth Taylor, Guest Columnist

The recent decision by the Caribbean Court of Justice (CCJ) that the attorney general of Belize is competent to bring an action in the tort of misfeasance on behalf of the Crown against two former government ministers has once again reignited the debate as to whether or not Jamaica should depart from the Privy Council as its final Court of Appeal and accede to the jurisdiction of the CCJ.

The attorney general is attempting to recover compensation for the loss sustained as a consequence of their alleged misfeasance in public office (arising from an appeal of the decision of the Court of Appeal of Belize).

The arguments for and against the CCJ are now so rehearsed that they are etched into the minds of all those who have attended any seminar on the topic. Two such arguments that have long been sources of wonderment for some are (a) that our region can produce judicial minds as good as any from elsewhere in the world and (b) that judges who come from the region will be more in touch with our cultures and will, therefore, be more likely to make decisions that reflect our regional justice systems.

Innocent misjudgments

These arguments are well appreciated, yet as I read the report on the judgment, I couldn't help but recall the so-called 'youthful exuberance' of a particular former government minister in our own country and what the implications of the CCJ's decision would be. I could not help but wonder how many other ministers have been or will be similarly 'exuberant', and what it would mean for a nation such as ours that now seems to be promoting youth among our leaders now more than ever before.

It is well documented that, historically, successive governments have had persons assume responsibility for various ministries with little or no prior experience. But the question is: Will this practice be an option available in the future?

It now seems that governments might no longer be able to put Cabinet ministers in charge of portfolios without them having extensive prior experience and/or training, since the inevitable result might be a lawsuit grounded in misfeasance against such ministers, for which political parties might have to foot the bill.

Implementation difficulties

Indeed, if we were to follow the CCJ, only few members of parliament and senators will qualify to be government ministers. This is simply because the pool of eligible individuals from which to choose will be so much smaller given that both political parties will now have to ensure they minimise possible accusations of deliberate waste, which previously would be seen as the usual mistakes in running ministries. Is it even plausible to think that persons who are experts in the relevant areas will make themselves available to serve the people? Why should they, when they could clearly command better-paying and, presumably, more secure jobs in the private sector?

Cabinet reshuffles

How will all of this impact on a prime minister's ability to change his ministers as he thinks will best serve the nation?

We can answer these questions ourselves when we look at this Golding administration. Just think of Robert Montague, with agriculture and fisheries; Gregory, Mair, with education; Arthur Williams; with public service; Othneil Lawrence, with transport and works; Dr St Aubyn Bartlett, with national security; and Shahine Robinson, with local government. And it is important that it is understood clearly that it is by no means being suggested that there is any 'exuberance' or misfeasance imminent, since no one knows what the future holds.

Public policy

But, if the implications of the CCJ's decision are so potentially problematic, one is forced to reconsider the merits of some of the arguments for acceding to the CCJ. It seems illogical that the judges of the CCJ, being on equal academic footing as the lords of the Privy Council, would make a decision as they have for Belize, with the result that it is likely that the persons who become government ministers will likely be persons with no prior training or experience in their particular portfolios and will thus very likely, make costly mistakes which may not be seen as innocent.

This seems like a contradiction in terms, but the problem is one that they could easily have solved within the scope of the law if they had used the familiar legal concept known as 'public policy'. Albeit for balance, it must be pointed out that public policy has been abused in its usage by courts in the past and was described by an English judge almost two centuries ago as "an unruly horse which carries its rider to unpredictable destinations".

In any event, various Privy Council decisions have shown that there is a place for the 'unruly horse' in English law, but it is submitted that it takes a certain level of wisdom and skill to discern when it should be used and when the unruly horse must be tamed.

However, the truth of the matter is that even the Supreme Court of Belize appears to be taming the unruly horse, as is shown by its 2010 decision in the case BCB Holdings Limited and The Belize Bank Limited v Attorney General, in which an argument by the attorney general that public policy should guide the court's reasoning was rejected.

However, whether or not the CCJ's decision from Belize is correct is subject to personal opinion, but what is sure is that they have not only tamed but have also succeeded in bridling the 'unruly horse'.

What else is true is that this decision is key in displaying the wisdom of the CCJ judges and must be considered carefully before Jamaica accedes. Perhaps one bad decision does not really matter, but I would like to think that most Jamaicans can tell that if taming is what is necessary, bridling is going overboard.

Garth O. Taylor is an economist and attorney-at-law based in Kingston. Send feedback to columns@gleanerjm.com and taylorp_2001@yahoo.com.