The C.C.J. v. Our Judiciary – 2
Quite apart from the matters of the appointment of judges and acting judges, their removal from office and their tenure both substantively and beyond the age of retirement, there are significant other institutional issues in terms of which the Agreement establishing the C.C.J. differs markedly from our Constitution. These are the remuneration of Judges, the comparative independence of the responsible Judicial and Legal Services Commission, the privileges and immunities accorded to Judges, and the provision of access to justice by the poorer sections of the Caricom Community.
Obviously, the payment of judicial officers is critical. On it rests their performance not only quantitatively but qualitatively. And, needless to say, it holds a key to whether or not judicial officers are dissuaded from compromising the oaths of office to which they swore to dispense justice impartially. To begin with, both the regional Judicial and Legal Services Commission and the O.E.C.S. Judicial and Legal Services Commission are armed with responsibility for setting the salaries and allowances of their respective Judges, including pension and gratuity, as well as the terms and conditions of their employment and other benefits. Needless to say, the decisions of either Commission are subject to "approval" by "all" participating Governments. Further, the expenses of the Courts as well as those of the Commissions are to be borne by respective Governments. In the case of our Judiciary, expenses are paid "in equal proportions". In the case of the C.C.J., they are paid "in such proportions as may be agreed" by respective Governments. And, as stated earlier, in respect of both our Judiciary and the C.C.J., the contributions to be paid by a member-State is charged to its Consolidated Fund. The control which this "power of the purse" gives political directorates over the judicial system is quite obvious.
To diminish such control and, thereby, guarantee the independence of its judicial officers, the C.C.J. has drastically altered its arrangements for funding. Instead of relying on direct periodic contributions from participating States, the expenses of the C.C.J. are met from the proceeds of a Trust Fund in the amount of US$100 million that was set up by the Court in 2003. In this, there is no provision for involvement by participating governments. The Trust Fund is managed by independent Trustees drawn from private sector institutions.
Of course, the powers and responsibilities reposed in the Regional Judicial and Legal Services Commission would not serve the ends of judicial independence unless the Commission were free from political control. In our view, its independence is made possible by the manner of its composition and the wide powers invested in the body. The Commission comprises eleven (11) persons, including two nominated from civil society bodies, two nominated jointly by the Caribbean Bar Association (OCCBA) and the O.E.C.S. Bar Association, two nominated jointly by national Bar or Law Associations, and two distinguished jurists. In fact, it has been suggested with reason that no more than three of the Commission's members might be considered to be subject to influence, directly or indirectly, by the political directorate. Importantly, a quorum for the transaction of business is "not less than six members." Also of note, Article V(12) of the C.C.J. Agreement stipulates that " in the exercise of their functions…the members of the Commission shall neither seek nor receive instructions from anybody or persons external to the Commission."
The potential for independent action on the part of the Regional Judicial and Legal Services Commission is strengthened by other considerations. Commissioners enjoy security of tenure by way of appointment for a period of three years in the first instance, and their eligibility to appointment for another three-year term. Like Judges of the Court, they are accorded privileges and immunities. Further, the Commission as a body is empowered to regulate its own affairs. And its proceedings cannot be inquired into in any court of law.
The independence of the C.C.J. is further underlined by the exclusive jurisdictions it is guaranteed. The first is an original, but exclusive, jurisdiction as an international court responsible for the settlement of disputes which arise between member-State and member-State, as well as between citizens and member-States of the Caribbean community. The other is the jurisdiction with which this YOU AND THE LAW is concerned. That is, its guaranteed exclusive jurisdiction as a Court of last resort, replacing the Privy Council, and hearing appeals from the various Courts of Appeal of participating member-States. The number of matters in respect of which final appeal lies to the C.C.J. as of right and with leave of the Court of Appeal of a member-State is huge. They are enumerated under Article XXV of the Agreement establishing the Court.
The C.C.J. has also sought to facilitate the independence and impartiality of its Judges in the exercise of their functions by according them, as one Caribbean legal scholar puts it, "such privileges and immunities as are required for the efficient and dispassionate performance of their duties free from political direction or control." In fact, the architects of the C.C.J. felt so strongly that such privileges and immunities were "necessary to protect" the "independence and impartiality" of Judges and Officers of the Court that it is decreed at Article XXX of the C.C.J. Agreement that they should form the subject-matter of a separate Protocol.
Lastly, but undoubtedly of primary significance, the C.C.J. makes its services readily available to the region's less privileged citizens in a way that our judicial system has failed to do. It is well known that only the wealthiest are able to lodge appeals with the Privy Council, our highest Court. The Privy Council sits in England, and the costs, especially of retaining Queen's Counsel there, place it outside the reach of the ordinary client. What this means is that you might have a winnable case on the merits, that is to say, according to the law. But, for want of resources, you will not have your day in court. And justice will thereby be denied.
By contrast, the C.C.J. makes provision for the poorer sections of society to gain access to its services. It does so, including in three major ways. Firstly, the Court will not sit exclusively in the Caribbean country in which its headquarters are located. Instead, as the need arises and circumstances permit, it will convene and hear cases in countries across the Caribbean region. This is provided for by Article III (3) of the C.C.J. Agreement. Secondly, the Court has simplified the process of lodging an appeal before it. In Ross v. Sinclair, a Guyana case, an elderly woman was granted leave to appeal as a poor person. And, thirdly, the physical presence of litigants is not required at the place where the Court is conducting a hearing. By the use of the latest audio and video technology, a person and his or her lawyer can sit at the High Court in Roseau, for example, and participate in a case that is being heard in Trinidad. This facility serves to spare the parties the need to travel to Trinidad and, needless to say, the enormous costs of being there.
In conclusion, then, it can be said that by any measure, in terms of the capacity to act independently, free from political manipulation, and without fear or favour, in the exercise of its functions, the C.C.J. stands a considerable distance away from our Judiciary. The independence of its Judges is guaranteed, on one hand, by their mode of appointment and removal, their tenure in office and the institution's arrangements for funding its expenses. It is guaranteed, on the other, by the comparative control enjoyed by the Regional Judicial and Legal Services Commission over the conduct of its work. Of no less importance are the wide areas of original and appellate jurisdiction provided to the Court as an institution, and the privileges and immunities available not only to its Judges but also to the members of the Regional Commission. And, perhaps the most important of all, the C.C.J. provides access to the poor people of the Caribbean in a way which our Judiciary, through the agency of the Privy Council, does not do and, in fact, was never intended to do.
In these circumstances, only a skeptic would deny that, in terms of the dispensation of justice to all our citizens fairly and equally, the existing arrangements which guide Judges in our country and the wider O.E.C.S. in the exercise of their functions are by and large in need of fundamental reform. The C.C.J. has since its inception come forward. And the Court points towards the future of justice in Dominica, the O.E.C.S. on the whole, and the rest of the Caribbean community. The C.C.J., as an institution, has proposed. It is left to the Judges.
Copyright (c) William Para Riviere, May 2013