December 07, 2009

CCJ judges: Quality, method of appointment debated
Source: Jamaica Gleaner

Published: Monday December 7, 2009

Robust and sometimes fiery debates erupt when there is an argument about Jamaica making the Caribbean Court of Justice (CCJ) its final court of appeal, replacing of the Privy Council. Questions of jurisprudence come to the fore in these debates which seem set to rage on some more, with persons adamant that the present judges on the CCJ Bench do not fit the bill.

While it is receiving strong support in some quarters, prominent attorney R.N.A. Henriques, is not yet ready to welcome the CCJ and its judges, simply because he does not believe that the judges on the court now are of the same standard as those at the Privy Council. He said that if the CCJ will replace the long serving judges of the Privy Council, the judges chosen should be of equal or higher calibre. He seems less than impressed with the current set on the CCJ bench.

Incorrect process

"In my view the selection process for the CCJ was not correct. I know that the CCJ respects transparency by advertisements inviting applicants for appointment as judges of the court. But persons of judicial excellence are not going to demean themselves and apply. I believe that the court should have invited judges who they think are of the highest quality," he told The Gleaner.

Henriques would like to see this changed. He even suggested inviting some members of the Privy Council to sit on the CCJ to help the court in its infancy.

However, Michael Hylton, another prominent Jamaican attorney, believes that the process by which the CCJ has gone about attracting judges ensures that the best minds are contracted.

"There has been a criticism of the benches here that, unlike the culture in England, where the top lawyers become the top judges, here that is not the case. I believe the CCJ has done all the right things to attract the best people, research facilities and pay," he said.

Questions about CCJ suitability surfaced again when Lord Nicholas Phillips, the man now heading Briitan's new Supreme Court, in a recent interview with the Financial Times, lamented that more than 40 per cent of the time of Britain's most senior judges is spent on Privy Council cases.

"I personally would like to see it reduced," he said.

That set off another round of national discourse with some of the nations top lawyers giving their view about the quality work of the court' judgments thus far.

Long overdue

Long-time CCJ advocate David Coore says it is due time Jamaica makes the CCJ its final court. Coore, a lawyer before Jamaica gained Independence in 1962, said the question of the quality of judges in the Caribbean should not be an issue.

"I have always been a strong supporter. No doubt the Caribbean has produced jurists of the highest quality and we have shown that in the past, in the days of the Federation (of the West Indies), with the Federal Court of Appeal and the quality of that appeal court," he said.

Coore said the quality of the jurisprudence should also not be questioned, as the judgments that he has seen from the CCJ, which has been in operation since 2005 have been well thought out and reasoned.

Hylton agrees with Coore.

"In the four years since it has been in existence, there have been some excellent judgments. I have heard no criticism of the judgments; the only criticism I have heard is that they have little work to test them," he said.

One trade case

Since its inception, the CCJ has heard 39 cases. However, only one of them has focused on human rights. The others have dealt with trade issues.

Anthony Gifford is another lawyer who has praised the makeup of the court and the decisions they have made. In an emailed response to Gleaner questions, Gifford said that while it is too early to judge the record of the court, the judgment in the Joseph and Boyce case was sound.

"The judgments in the death penalty case, Attorney General of Barbados vs Joseph and Boyce, are particularly impressive, drawing on international human-rights precedents to reach a just decision which saved the lives of two men. Seven judges gave six separate judgments; in the Privy Council, you never get more than one judgment unless there are dissenting voices," he said.

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