Bruce Golding and the Caribbean Court of Justice

Published: October 18, 2009 | The Sunday Gleaner
By Delano Franklyn, Attorney-at-Law

The Gleaner’s editorial of October 9, 2009 with the caption – Significant hints of change on the CCJ - stated thus, ‘addressing persons at the Mona Campus of the University of the West Indies Tuesday night (October 6), Mr. Golding said he was considering a re-evaluation of Jamaica’s position on the Caribbean Court of Justice.’ According to Mr. Golding, ‘I think we are in a position where that proposal (Jamaica’s participation in the court) can be revaluated.’

A number of persons having heard Prime Minister Golding’s latest pronouncement on the CCJ are of the view that Mr. Golding is now prepared to give the CCJ his support.

That is why your editorial concluded by suggesting that, ‘perhaps we can now engage a robust, frank and intellectually sound debate on the value of the court . . . .” However, it is important to understand that Mr. Golding’s pronouncements on issues are usually determined by the audience he is addressing. This is also true of the CCJ.

Ever since his days with the National Democratic Movement, Mr. Golding has maintained, and rightly so, that the appointment of the judges must be insulated from political interference and that there must be a guaranteed source of financing for the court. Mr. Golding, however, has consistently shifted his position on these two fundamental issues making it very difficult for one to be clear as to what he agrees with and what he does not.

AMENDMENTS TO THE AGREEMENT

Having heard the criticism raised by a number of persons in the Caribbean about how the judges were to be appointed, the Caribbean Heads of Government had the Agreement establishing the CCJ, redrafted on a number of occasions, and made significant amendments to the method of appointing the judges and financing the Court. As a result, Mr. Golding, having left the NDM, and thereafter, appointed as a Senator, speaking in the Senate on May 8, 2003 said in relation to the appointment of the judges;

‘I also want to acknowledge that some significant improvements have been made on what was originally presented as the Agreement, and it is important that we acknowledge that. In fact, that there have been some improvements is a vindication of the concerns that have been expressed by this side (JLP) and by people outside of this chamber. When, for example, we objected to the direct appointment of the judges by Heads of Government, that was a real concern. Thankfully that has been addressed.’

As it relates to the financing of the Court, Golding also speaking in the Senate on May 8, 2003 said,

“We have been told that a trust fund is being established with US $100 million which is to be sourced by the Caribbean Development Bank and that various portions of that US$100 million will be absorbed by various countries as part of their national debt and they will then be responsible for the servicing of that debt. Jamaica’s share of that amount, we are told, is going to be US$27 million. I understand that authorisation has recently been given to the Caribbean Development Bank to enable them to now approach the market. It addresses one of the concerns that we had. It addresses the question as to whether or not the court would be assured funding.”

Your editorial writer needs to be aware of the fact that Mr. Golding having stated his considered view on the CCJ on May 8, 2003, re-evaluated his position when he became the leader of the JLP by declaring at the Annual Conference of the JLP on February 19, 2005 that,

‘the method of appointment of Judges (of the CCJ) in our view still leaves regional governments with too much direct and indirect influences.’

This position represented a complete turnaround by Mr. Golding. Yet, an examination of the appointment of the Judges to the CCJ will clearly demonstrate that Mr. Golding’s pronouncement in the Senate on May 8, 2003 was correct, and that his outburst at the JLP’s Conference on February 19, 2005 was incorrect. It is important for members of the public to understand how the Judges to the CCJ are appointed

APPOINTMENT OF JUDGES

The appointment of Judges to the CCJ is carried out by the Regional Judicial and Legal Services Commission (RJLSC). As is stated in Article V of the Agreement, the RJLSC shall consist of the following persons:

1. The President who shall be the Chairman of the Commission.

2. Two persons nominated jointly by the Organisation of the Commonwealth Caribbean Bar Association (OCCBA) and the Organisation of Eastern Caribbean States (OECS) Bar Association.

3. One Chairman of the Judicial Services Commission of a Contracting Party selected in rotation in the English alphabetical order for a period of three years.

4. The Chairman of a Public Service Commission of a Contracting Party selected in rotation in the reverse English alphabetical order for a period of three years.

5. Two persons from civil society nominated jointly by the Secretary General of the Community and Director General of the OECS for a period of three years following consultations with the regional non-governmental organisations.

6. Two distinguished Jurists nominated jointly by the Dean of the Faculty of Law of any of the Contracting Parties and the Chairman of the Council of Legal Education; and

7. Two persons nominated jointly by the Bar or Law Association of the Contracting Parties.

Article V, Section 3 (1) of the Agreement states that the Commission shall (among other things) have responsibility for:

1. a) Making appointments of the office of Judge of the Court other than that of President.

The only member of the Court, of whose appointment and participation the regional political directorate will have a say, is the President of the Court.

The President has to be appointed by the Heads based on a recommendation from the Commission. The Heads are not bound to accept the recommendation of the Commission, but they cannot substitute their own judgement for that of the Commission. With this type of arrangement in place to appoint the President and the judges of the CCJ, it is the only regional court in the world whose Judges are not directly or indirectly appointed by national political representatives.

LORD PHILLIPS AND THE CCJ

In his address on October 6, 2009 at the Mona Campus, Mr. Golding claims that he can now re-evaluate his position, and possible the JLP’s position on the CCJ, because the two major concerns that of the appointment of the judges and the financing of the court have been addressed. Yet, he acknowledged from as far back as May, 2005 that these issues were addressed. It, therefore, begs the question, what has now led Mr. Golding to his new position of re-evaluating his relationship with the CCJ?

Mr. Golding has been forced into this position on the CCJ because of the salvo fired at Jamaica by the incoming president of the UK Supreme Court Lord Phillips.

Lord Phillips in an interview which appeared in the Financial Times on September 21, 2009 complained about the disproportionate time being spent by the judges on appeals from independent countries in the Caribbean which retain the Privy Council as their final appellate body.

Lord Phillips also stated that as much as 40 per cent of his judges working hours are devoted to these appeals and suggested that Caribbean countries should use the CCJ. This remark by Lord Phillips must be an embarrassment for Prime Minister Golding, the JLP, and those who have campaigned for years against the CCJ, arguing that it is better to retain our ties with the Privy Council.

Let us hope that Prime Minster Golding’s latest position of re-evaluation will lead to the robust, frank and intellectually rounded debate of which your editorial speaks. My only concern is that Golding may flip once again on this issue.