Published: Monday | December 7, 2009
Despite assurances from the Caribbean Court of Justice (CCJ) about measures put in place for the independence of the court, Susan Goffe of Jamaicans for Justice is expressing some concern about how it is administered.
Goffe noted that while there was a Regional Judicial and Legal Services Commission to oversee the selection of judges, the arrangements do not go far enough to ensure the legitimacy and security of the court.
Goffe added that more changes are needed to secure the independence and permanence of the court than the amendments already made to the Treaty of Chaguaramas. This treaty is the agreement between the Caribbean states, setting up the CCJ, among other things.
Goffe believes that any legitimisation of the court should be done by enshrining whatever changes there should be in the Jamaican Constitution. With that said, she believes serious national discourse should begin.
Judiciary independence vital
Answers to concerns about the independence of the court from manipulation are posted on the CCJ website.
"It is generally accepted in our societies that independence of the judiciary is a vital and essential ingredient of the rule of law, a basic principle of social engineering in CARICOM member states.
"To ensure independence of the members of the court, appropriate provisions have been elaborated in the agreement establishing the CCJ to provide for credible institutional arrangements," the website read.
It continued: "First, unlike the situation with the European Court of Justice, where Judges are appointed by the ministers of government, judges of the CCJ are appointed by a Regional Judicial and Legal Services Commission, whose composition should offer a reasonable degree of comfort to the court's detractors."
The funding of the court by member states of CARICOM has also raised the spectre of influence by these same states. However, the CCJ on its website said that certain steps have been put in place to ensure that this does not occur.
"In order to pre-empt this eventuality, the heads of government have mandated the ministers of finance to provide funding for the recurrent expenses of the court for the first five years of its operation."
A trust fund has been established and capitalised in the sum of US$100 million, so as to enable the recurrent expenditure of the court to be financed by income from the fund which is administered by the Caribbean Development Bank.
Former Solicitor General Michael Hylton said this provision has earned his confidence in the court.
Beyond the rules
"Political influence doesn't mean that a politician is going to call you and tell you what to do, but if a country doesn't like a judgment, it can withdraw its payment. This cannot occur under the treaty and with the trust fund that is set up," he said.
Attorney-at-law R.N.A Henriques, however, believes that independence goes beyond just putting in rules.
"We have had a history in Jamaica, where the bias of rulings are in favour of the government in cases. Therefore one is not really insulated by a Constitution. The dispensation of the rulings will be based on integrity not by what is in the constitution. Time will tell, that is why it is important that the judges are of a certain calibre."