Garth Rattray | We need confidence in the CCJ

The Caribbean Court of Justice (CCJ) has been in the news lately but not for the right reasons. The regional court was many decades in the making but has yet to realise its full potential.

It was during the Sixth Conference of Heads of Government of the Caribbean Community in 1970, held in Jamaica, that the Jamaican delegation proposed the establishment of a Caribbean court of appeal. That proposal eventually led to the establishment of the CCJ on February 14, 2001, when CARICOM member states signed the Agreement Establishing the Caribbean Court of Justice. The agreement entered into force in July 2002. Then, in Port-of-Spain, Trinidad and Tobago, on April 16, 2005, the CCJ was officially inaugurated.

The CCJ functions under a dual system. It has an original jurisdiction as an international tribunal to interpret and apply the Revised Treaty of Chaguaramas. In that role, it resolves trade and economic disputes arising within the CARICOM Single Market and Economy (CSME). The Court’s original jurisdiction is part of the treaty framework binding on the relevant CARICOM contracting states.

However, some CARICOM states, including Barbados, Guyana, Belize, Dominica, and Saint Lucia, have also adopted the CCJ as their final court of appeal for civil and criminal cases. For them, the CCJ has replaced the Judicial Committee of the Privy Council in London as their final appellate court. Ironically, although it was Jamaica that proposed the formation of the CCJ, it has not yet adopted it as its final court of appeal.

The Caribbean Court of Justice was meant to be a powerful symbol of Caribbean unity and self-confidence. Its creation represented the belief that the peoples of the region could establish an institution to dispense justice with independence, competence, and integrity without having to look beyond the Caribbean for the final word on their legal disputes. It was meant to represent judicial independence from England.

Judicial panels are established to hear appeals, review the evidence and records before them, examine the interpretation and application of the law, and determine whether previous rulings contain errors. They also establish legal precedents. By their very nature, there are bound to be different opinions among judges, and there will, inevitably, be disagreements.

However, the recent, very public revelations concerning disagreements and allegations of infighting among CCJ justices have the potential to do considerable damage to public confidence in the institution. It is, therefore, deeply troubling that the court now finds itself embroiled in a very public dispute among its own judges.

There are public allegations of serious concerns about the administration of the court, including accusations of authoritarian leadership, the manipulation of judicial panels, and attempts to influence judicial deliberations. These remain allegations, not established facts. The President of the CCJ, Justice Winston Anderson, who is Jamaican, has emphatically rejected the allegations of panel manipulation and interference with judgments while acknowledging that some matters might have been handled differently.

The CCJ president issued an in-depth declaration strongly denying leaked allegations of “panel fixing” and interference. He described the allegations as “wholly untrue”.

Reportedly, Justice Anderson emphasised that the removal of Justice Chile Eboe-Osuji from a CCJ panel followed a heated dispute over judicial dress and was not an attempt to influence the outcome of the case. After being unable to resolve the dress-code impasse through private communications, Justice Anderson removed Justice Eboe-Osuji from a procedural hearing panel for the case of D’Almada v Trinidad and Tobago.

Aside from acknowledging that he may have been too heavy-handed in the dress-code matter, the CCJ president also stated that his direct, private interventions regarding judicial appointments in Guyana could have been handled better if they had been confined strictly to public commentary.

Out of every bad comes good. As a consequence of these recent unsubstantiated allegations of autocracy, authoritarianism, dictatorial tendencies, and panel fixing, which the CCJ president labelled “intellectually dishonest” and “malevolent”, significant changes have been announced concerning the composition of judicial panels, and an independent review of the Court’s governance has also been initiated.

Under the revised arrangements, there are to be en banc sittings. All seven judges of the court are to sit on all judicial panels unless a judge is formally excused for a legitimate reason. The CCJ says the new arrangements are intended to promote consistency, transparency, and flexibility in the allocation of judicial work and to support the efficient administration of justice.

Additionally, the Regional Judicial and Legal Services Commission (RJLSC) is involved in an independent review of the governance structure of the CCJ. The RJLSC is established under the Agreement Establishing the Caribbean Court of Justice and has responsibility for appointing judges to the court, as well as important administrative responsibilities concerning the court’s human and financial resources.

The mere perception of a problem within the CCJ can erode public confidence in the court. Judges are expected to disagree - intellectual independence is an essential component of appellate justice. A strong appellate court encourages judges to challenge one another and vigorously debate the law. However, the leaking of private internal communications seriously undermines the confidentiality essential to the proper functioning of the institution.

If Jamaica is to go through the process of obtaining bipartisan support for constitutional reform to make the CCJ our final appellate court, it must decisively address leaks, resolve internal governance rifts, demonstrate transparency, and build unshakeable confidence in the Court’s institutional integrity.

The CCJ cannot only depend on its legal authority. It must engender the confidence of the territories if it is to become the final appellate court.

Garth Rattray is a medical doctor with a family practice and author of The Long and Short of Thick and Thin. Send feedback to columns@gleanerjm.com and garthrattray@gmail.com.