September 10, 2010

Caribbean court of justice: a model for international courts?

Five-year-old CCJ has been praised for its process of selecting independent, high-quality judges

Source: Philip Dayle,

A book by UCL professors examining how judges are chosen for international courts has been getting a lot of attention recently. One of the authors has praised the process of selecting judges for the Caribbean Court of Justice (CCJ) – a supra-national court serving the Caribbean.

Professor Kate Malleson names the CCJ's external selection body – called the Regional Judicial and Legal Services Commission (RJLSC) – as a model for identifying independent and high-quality judicial candidates.

Born of a fear of political interference, the commission is chaired by the CCJ's president and consists of legal and non-legal persons, as well as members of civil society from different Caribbean member states. The court's bid to be independent of governments is bolstered by the fact that it is wholly financed through a trust fund, from money raised on international markets.

Structurally, the CCJ is an interesting hybrid. It is both a final appellate court for criminal and civil cases and the tribunal that resolves treaty disputes between member states. As an appellate court, it replaces appeals to the judicial committee of the privy council. The privy council was previously the UK supreme court, hearing matters as the final appellate authority, and still hears appeals from British territories, dependencies and some Commonwealth countries.

Though most of the CCJ judges previously sat at a national level, at least one member of the panel is required to be an expert in international law. This has favoured legal academics, particularly those with experience working with the Caribbean community (Caricom) system. One judge is also required to be from the civil law tradition, reflecting the presence of civil law jurisdictions such as Suriname and Haiti.

Unlike the international criminal court (ICC), the CCJ selection system does not include prescriptions to ensure gender balance or quotas for country representation. Judicial vacancies are advertised and suitably qualified candidates may apply.

As the two countries that have notoriously held off on submitting to the CCJ as a final court of appeal, Trinidad and Tobago and Jamaica each currently boast citizens on the CCJ's seven-member panel. In the five years since the inception of the CCJ, only one woman has been appointed to sit as a judge.

Tracy Robinson, senior lecturer in the law faculty at the University of the West Indies at Cave Hill in Barbados, is not persuaded that this system ensures sufficient diversity: "In the absence of explicit provisions, I hope the under-representation of women on the court is directly addressed by the Service Commission [and] taken into account in the appointment of new judges". Early fears that the CCJ was set up by Caribbean governments to be the "hanging court", as the antidote to the privy council's supposed hostility towards the death penalty, has not materialised. In one of its first decisions, the court upheld a challenge to the death penalty, arguably in the liberal tradition of the privy council. Court watchers such as Robinson believe that the true test for the CCJ will come in civil liberties cases in areas other than the death penalty. It's in producing a range of these decisions, she argues, that the court is likely to establish itself as an authoritative voice in the region.

Maybe it's too early to judge the judges of the CCJ. The absence of Jamaica and Trinidad and Tobago has led to a paltry case load for a court that is hugely expensive to maintain. And without more robust public interest lawyering or arguing novel questions of law, the true mettle of the CCJ has not been tested. The jury is out on whether the court will be transformative in developing the jurisprudence of the region.