The C.C.J. v. Our Judiciary - 1

The architects of the C.C.J. (Caribbean Court of Justice) must have been convinced that the arrangements provided by our Constitution for protecting the independence of the Judiciary are more than outweighed by those which allow for the political manipulation of judicial officers. That much may be gathered from an examination of the arrangements establishing that Court as the tribunal of last resort, in place of the Privy Council, to participating member States of the Caribbean Community. The C.C.J. embraces and adopts the protective provisions. It rejects and parts company with the politically manipulative provisions. It sets up a Regional Judicial and Legal Services Commission along lines which frees that institution from control by the political directorates. And, quite significantly, it democratizes the system of justice by providing access to its services by the poorer sections of society, in a manner that the Privy Council does not, and was not intended to, do.

Like Section 4 (1)(5) of the Supreme Court Order, paragraph 1 of Article IX of the Agreement establishing the C.C.J., protects the office of a Judge of the Court against being abolished while someone appointed to the position is in office. Relatedly, the Agreement at paragraph 3 of Article XXVIII, as in Section 11 (1)(b) of the Supreme Court Order, safeguards the salaries and allowances of its President and other Judges, as well as the terms and conditions of service, against being "altered to their disadvantage" while they remain in office. Further, Article XXVIII, paragraph 1, of the Agreement adopts the stipulation in Section 13(2) of the Supreme Court Order that the salaries and allowances of judicial officers are to be charged on the Consolidated Fund "or public revenues" of participating States. And, as in Section 7 of the Supreme Court Order, Article X, paragraph 1 of the Agreement compels judges of the Court, before entering upon their office, to swear to the oath of office.

Otherwise, there are marked differences as to institutional arrangements which govern the judges in our Judiciary, on one hand, and the C.C.J., on the other. Take the case of the appointment of the Chief Justice of the one and the President of the other. Under present arrangements our Chief Justice is appointed by concurrence, in other words, unanimous agreement among all O.E.C.S Prime Ministers, without any intervention by the sub-regional Judicial and Legal Services Commission. Dissent by a single Prime Minister, for whatever reason, dis-enables the appointment of a majority candidate. By comparison, the President of the C.C.J. is appointed under Article IV (6) of the C.C.J Agreement "on the recommendation" of a Regional Commission. Further, neither concurrence no unanimity among the "contracting Parties", that is to say, the participating governments, is required. A majority vote of three-quarters of the governments concerned will suffice.

As to removal of the President of the Court from office, unlike in the case of our Chief Justice, regional governments do not have a free hand. The C.C.J President may be removed only after a recommendation to do so is made by the Regional Commission. Such a recommendation, as in the case of our Chief Justice, follows an elaborate process involving the setting up of a tribunal to investigate the question of removal and report to the Commission. There is, however, a most critical point of difference. It is this. In the case of our Chief Justice, the voice of a single Prime Minister is sufficient to start the process of inquiry. In the instance of the C.C.J. President, by contrast, "at least three Heads of Government" are required to do so.

Judges of the Caribbean Court, other than its President, are appointed and removed by a procedure similar to that followed in respect of Justices of Appeal and Puisne Judges in the O.E.C.S context. The power to do so lies with the Regional Commission. And, notably, a decision to do the one or the other is made by a simple majority vote of that body. Further, as to removal, save that the starting point is the Regional Commission, rather than at least three Heads of Government, and that the ultimate decision to remove is made by that Commission, rather than by "the Heads of Government", the process is the same as followed in respect of the removal of the C.C.J President, earlier discussed.

What of judges in acting, instead of substantive, positions? In the O.E.C.S the power to make such appointments rests with the Judicial and Legal Services Commission. In the C.C.J context, that is not so. Where the office of President becomes vacant, the duties of the office are to the carried out under Article VIII by the "most senior judge according to the date of his appointment". In the event that none of the other judges is senior by appointment, one of them must be appointed "in accordance with the advice of the Heads of Government tendered after consultations with the President and such other persons or bodies of persons as the Heads of Government may think fit".

In the case of a Caribbean Court judge, other than its President, the Regional Commission appoints a person to act in the vacant office, provided that person is "qualified for appointment as a judge of the Court". Article IV (11) of the C.C.J Agreement identifies the following among the criteria for selection: "high moral character, intellectual and analytical ability, sound judgement, integrity, and understanding of people and society".

As to tenure in office, you are reminded that Section 8(1) of the Supreme Court Order empowers the O.E.C.S Judicial and Legal Services Commission to extend the tenure of judges for "a period or periods not exceeding in the aggregate three years", beyond the retirement age. You are reminded, further, that any such extension of tenure is subject to the "concurrence" of the Prime Ministers of "all the States". And you will agree that such a three-year extension of tenure may in the circumstances of retirement present a temptation to office-holders to compromise their oath of office.

The Agreement establishing the C.C.J offers no such temptation. Article IX provides that, subject to earlier removal, the Court's President is to hold office for a "non-renewable term of seven years or until he attains the age of seventy-two years whichever is earlier". A judge of the Court, other than the President, is to hold office until seventy-two years of age. Provision is made for judges, whether the Court's President or otherwise, to continue in office for a "further period". But that further period is limited to three months, rather than three years as in respect of the O.E.C.S judiciary. The extension by the C.C.J is intended not as a basis for continued long-term employment but, instead, "to enable (the Judge) to deliver judgement or to do any other thing in relation to any other proceedings part-heard" by the judge concerned.

The C.C.J's institutional arrangements also differ markedly from those of our Judiciary in terms of remuneration of its judges, the comparative independence of the responsible Commission, and the privileges and immunities accorded to its Judges. These subject-matters will be dealt with in Part 2 of this YOU AND THE LAW.

Copyright (c) William Para Riviere, May 2013