Mickel Jackson | CCJ growing pains are no excuse for the Privy Council

The leaked emails from inside the Caribbean Court of Justice (CCJ) do not make for comfortable reading. Judges describing their president’s leadership as authoritarian, complaining of unilateral panel changes, attempts to shape opinions on live cases, and a “toxic” working environment, undermine public trust. For an institution still fighting to become the final appellate court for several Caribbean nations, the timing is particularly awkward.

On August 14, the President of the Court, Justice Winston Anderson, issued a detailed public statement condemning “in the strongest possible terms, the unauthorised disclosure and publication of confidential material”. He provided context for the contested decisions, denied that any panel had been altered to influence outcomes, and acknowledged that he “may have approached the matter of the handling of the issue of the dress code too strongly”. He also stated that, where he has been at fault, he will own up to his shortcomings. Importantly, going forward, “every Judge of the Court will be required to sit on every panel, unless the Judge opts out for a legitimate reason and is excused”.

Yet the president’s statement, while necessary and welcome, cannot by itself close the matter. The most serious allegations came from multiple judges, and public confidence will be best served by the Regional Judicial and Legal Services Commission exercising its independent functions. Under the agreement establishing the court, the commission holds disciplinary authority over the judges. Detailed Judicial Discipline Regulations set out how complaints of inability or misbehaviour are investigated, referred to an independent tribunal, and resolved. For the president, the process is elevated: removal requires a tribunal recommendation followed by a three-quarters vote of the Heads of Government. A Judicial Code of Conduct supplies the ethical standard. These safeguards exist for precisely this situation. An independent process by the commission remains essential.

This is not a crisis, which, in this context, would mean a fundamental breakdown of judicial independence, the collapse of the Court’s internal accountability mechanisms, or a situation so severe that the institution can no longer be trusted to function impartially. While the allegations are serious and deserve thorough scrutiny, that threshold has not been met. However, treating the emails as mere evidence of “healthy debate”, or focusing more on the leak than on the substance of the allegations, minimises their seriousness. The allegations raise legitimate questions that require proper investigation, not soft spin that downplays the gravity of what has been alleged.

The emails are also no reason for the familiar chorus insisting that Jamaica must cling to the Judicial Committee of the Privy Council.

The Privy Council carries its own record of governance questions. Lord Millett, in his memoir As in Memory Long, recorded that the 2004 reversal of the Roodal decision on the mandatory death penalty was achieved “thanks to the contrived composition of the panel”. Lord Hope’s diaries revealed similar concerns: in the Jamaican Watson death penalty appeal, Lord Hoffmann pushed for the panel’s inclusion of former Jamaican Chief Justice Edward Zacca in place of the “more liberal” Lady Hale, producing narrow 5-4 majorities that upheld key aspects of the death penalty regime across several countries. These episodes raise the same spectre of judicial gerrymandering now levelled at the CCJ.

Are we holding the CCJ to a higher standard than we apply elsewhere? Consider the United States Supreme Court, where successive presidents and senators openly appoint justices whose ideological leanings align with their political projects. The composition of that court has been shaped by partisan calculation for generations. Yet, the United States does not abandon its apex court each time the ideological balance shifts.

That is not to diminish the seriousness of any practice that risks undermining judicial neutrality, whether in Port-of-Spain, London or Washington. Neutrality and independence matters. The proper response is rigorous scrutiny and accountable process, not selective nostalgia or reflexive retreat.

Access-to-justice barriers associated with the Privy Council have not vanished. Taking a case to London still demands specialised counsel, significant expense, and logistical hurdles that most Jamaicans cannot overcome. The CCJ was designed to reduce those barriers.

The ruling political party has floated the idea of creating a purely domestic final court in Jamaica. This is not the right path while court infrastructure and resources already strain the existing system. More importantly, it would deny Jamaica the benefit of a shared regional jurisprudence attentive to Caribbean realities. The CCJ’s decision in McEwan v Attorney General of Guyana (2018) is instructive: the ocurt struck down a colonial-era cross-dressing offence as unconstitutional, reading down savings-law clauses and affirming rights to expression in a manner that advances a distinctively Caribbean constitutionalism. Remaining with the Privy Council, or retreating to an under-resourced national apex court, would forgo that evolving body of regional law.

Labelling accession to the CCJ “reckless”, as the Senate president has done, while the court possesses detailed, independent disciplinary machinery and an elevated removal process for its president, mistakes temporary internal friction for structural collapse. The reckless course would be to discard a regional institution designed for accessibility and Caribbean context on the basis of unresolved allegations that the court’s own rules are equipped to examine.

If the concerns in the emails prove well founded, the proper response is not to abandon the regional court or use the emails as a convenient excuse not to accede. It is to insist that its established processes are engaged promptly, independently and transparently.

Now that the president has spoken, the Regional Judicial and Legal Services Commission itself must demonstrate meaningful transparency. While full public disclosure of every internal deliberation is neither realistic nor desirable, the public interest requires more than a generic statement. Serious allegations going to judicial independence and integrity should be investigated through the established processes already outlined. On lesser interpersonal or administrative differences, the judges themselves should resolve them collegially. At minimum, the commission should formally acknowledge the allegations and reaffirm its commitment to those mechanisms.

The public should resist nostalgia for an overseas tribunal with its own complicated history. On the other hand, public confidence in the CCJ will be restored not by regionalist ideals, but by visible accountability inside the court built to serve this region. Jamaica’s long debate over final appellate jurisdiction has also turned on questions of trust and institutional maturity. Yet, one deeper question lingers beneath the online calls to “stay with the Privy Council”: Is the contrast really with the institutions themselves, or with our lingering distrust of our capacity to govern ourselves?

Mickel Jackson is the executive director of Jamaicans for Justice. Send feedback to communications@jamaicansforjustice.org.