Caribbean Court of Justice president speaks on selection of judges

BOSTON, United States, Wednesday October 9, 2013, CMC – 

President of the Caribbean Court of Justice (CCJ), Sir Dennis Byron, says a conscious and forthright statement of dedication to achieving diversity should be noted when the Trinidad-based regional court is considering the diversity of its judicial appointments.

Addressing the International Bar Association (IBA) 2013 Conference here, Sir Dennis questioned how the CCJ, established in 2001 to replace the London-based Privy Council as the region’s highest court, takes into consideration the diversity of its judicial candidates.

“Complicating this question even more is the fact that it is unlikely that the pool of candidates, itself, will reflect the full diversity of the population. So, what should we do and what can we do?,” he asked as he addressed the topic “Considering Diversity: The Judicial Process for the CCJ and Beyond”.

Sir Dennis who served as Vice Chair of the Judges’ Forum panel discussion on “Appointing Judges: diversity or simply the best?” said the judicial selection criteria contained within the agreement establishing the CCJ does not offer much assistance.

He notes that in making appointments to the office of Judge, the agreement outlines issues such as high moral character, intellectual and analytical ability, sound judgment, integrity, and understanding of people and society.

“To be fair, the agreement does contemplate diversity, but only in the sense of intellectual diversity. It includes provisions requiring the inclusion of judges with expertise in international law and international trade law and allowing for candidates that have substantial judicial experience or academic experience in either common or civil law systems.”

He said even though the agreement does give some latitude to address the concept of diversity, the CCJ judicial qualification criteria are not an aberration in this regard, making reference to the Statute of the International Criminal Tribunal of Rwanda that similarly focuses on merit and intellectual expertise.

Sir Dennis said even the updated Statute of the International Criminal Tribunal for the Former Yugoslavia uses identical language, leaving diversity entirely out of the statutorily required characteristics.

He said despite the fact that diversity is not listed in the selection criteria of the CCJ and other international tribunals, it does seem to be taken into consideration by those who are doing the selecting or the electing.

“While we cannot know the details of the discussion surrounding the appointment of the first panel of judges at the CCJ, we can see the result- a panel, of only seven judges but with differences including those of gender, colour, ethnicity, nationality, places of geographical origin, religion and background experience, Common Law and Civil Law.

“This difference between what is on paper and what actually transpires during the selection process seems to be quite common when we look at other courts,” he added.

But he said he does not think that these informal practices and conventions as practiced by some international courts also are quite enough to address the issue of diversity and public perception. “Projecting a diverse and inclusive face – one that reflects to some degree the population that is served – should be a priority for every court. And I suggest that for the CCJ, a court that has been tasked with deepening regional integration, this is even more important and more urgent.

“We take this charge seriously, and we have strived to employ a regional work force, to represent the diversity of the region in the official languages of the Court, to sound like the region in the accents you hear on our phone system, to look like the region in the faces and flags you see on the website. I think it is time to make this same dedication to regional diversity explicit in our judicial selection process.”

Sir Dennis said while a quota system can never be appropriate for the CCJ, given the sheer range of diversity in the region, he believes “that a conscious and forthright statement of dedication to achieving diversity as part of achieving the best CCJ bench, would be an enormous step in the right direction.

“Of course one must vigorously maintain that the qualities of sound intellect, extensive learning in the law and good character cannot be minimised or sacrificed.”

But he told the international conference that diversity should not be a tie-breaker, as it is in the International Bar Association’s Human Rights Institute Resolution (2011), but a fundamental consideration in the selection of the Bench from the range of candidates who are up to the standards required of a judge of the relevant court.

“It should make the Bench as a composite, better than a mere aggregation of the individuals on it. It should not be portrayed as ‘diversity or merit’ or even ‘diversity and merit,’ but as ‘diversity as a vital component of merit.”

But he said that the solution comes at a price and cannot beautomatic or magical.

“It is not up to the court or its selection process alone. The price may involve an element of public service. No one can be appointed to the CCJ Bench who does not apply, and it is well known in the Caribbean, that the levels of remuneration at the highest levels of the legal profession exceed that of the Bench.

“Let us be honest and upfront about the role of diversity in the Caribbean region. I think it would do much to send a signal to the people of the region that while every religion, ethnicity, and nation cannot be represented simultaneously on the bench, we do pay attention to these things and they are taken into consideration openly and honestly in the development of Caribbean jurisprudence,” he told the conference.

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Experts say Myrie ruling is a turning point for regional integration

BRIDGETOWN, Barbados, Tuesday November 5, 2013, CMC 

Almost a month after the Trinidad-based Caribbean Court of Justice (CCJ) ruled that Barbados had breached the rights of a Jamaican national when she sought entry into the country in 2011, regional stakeholders say the judgment represents a turning point for the regional integration movement.

The CCJ was established in 2001 to replace the London-based Privy Council as the region’s final court, but while many Caribbean Community (CARICOM) countries are signatories to its original jurisdiction, only Barbados, Guyana and Belize are signatories to the appellate jurisdiction of the court that also serves as an international tribunal interpreting the Revised Treaty of Chaguaramas that governs the integration movement.

At a panel discussion at the Cave Hill campus of the University of the West Indies earlier this week, panellists examined the implications of the CCJ ruling in the Shanique Myrie case in which Barbados was also ordered to pay BDS$75,000 (one BDS dollar = US$0.50 cents) in compensation.

Myrie, who had been granted leave by the CCJ to file the action, alleged that when she travelled to Barbados on March 14, 2011 she was discriminated against because of her nationality, subjected to a body cavity search, detained overnight in a cell and deported to Jamaica the following day.

Myrie also claimed that she was subjected to derogatory remarks by a Barbadian Immigration officer and asked the CCJ to determine the minimum standard of treatment applicable to CARICOM citizens moving around the region.

Barbados Attorney General Adriel Brathwaite said that while the introduction of free movement within CARICOM though noble, it was not properly thought out.

Highlighting Barbados's concerns, he said there were not enough structures in place to ensure free movement work and if the region doesn't get it right, there will be chaos.

“We're faced with a situation where we are concerned about whether or not we have the capacity not only to provide housing for all of our people but for those of us, those people from the region who we would love to come to live with us.

“But we can't invite people to come and live with us and then we have six and eight people living in a room, sharing one bathroom etc., (these) kind of stories you hear from time to time.

“We have the whole issue of education. We, to the best of my knowledge are about three secondary schools behind where we would like to be and probably three or four junior schools from where we would like to be. If we want to invite our brothers and sisters we want to ensure that they also have access to education,” he said.

Brathwaite insisted there's nothing earth shattering about the Myrie judgement and that Bridgetown has already made moves to re-train its border personnel in keeping with the CCJ ruling.

But he stressed that all member states must follow suit to make free movement a reality.

“What we were doing is that we were granting three months initial and then if you want an extension come back and give us a chance so we can get an idea in terms of what you are doing, what you are up to and if you needed the additional three months then they will give you the additional three months.

“All it means now from a particular perspective is that you want the six months and rather than having the mechanism where you need to come back to us, if we think there are issues we will go to you. It means that we will have to have some additional bodies on the ground immigration-wise but that's what happens in most countries.

“So that's why I said it is really not a major issue. What might be the major issue would be the fact that we really have to change psyche of many Immigration Officers across the region. I have been in St Kitts going into Nevis and been asked how come I am going into Nevis so often? I have been asked that. So it is not a case where it only happens in Barbados,” he added.

But Dean at the UWI Faculty of Law, Dr David Berry, believes it is important Caribbean people are educated about their rights under the Treaty of Chaguaramas. He said the treaty does not in fact grant freedom of movement.

“It grants freedom of movement in Article 46 to CARICOM Skilled Nationals, certain categories of persons. So what the revised treaty does have is another provision which says towards the goal of free movement we will try to do these things.

“So Article 45 talks about a goal of free movement and Article 46 is of one instance of free movement. So the revised treaty itself, and this was argued before the court, does not give a full blown right of freedom of movement.”

He said the regional leaders at their conference in 2007 created in a sense a right of free movement. “They created an automatic right to enter and stay for six months subject to sufficiency of funds...you will not become a burden on the public purse and that you are not undesirable. So those are the two criteria.”

But Dr Tennyson Joseph, the head of the Department of Government, Sociology and Social Work at the university said the Myrie ruling has forced the region to rethink the concept of sovereignty.

He said the region's current economic troubles have also led some governments to look inward, moving away from the vision of deeper integration articulated by the framers of the “Time for Action” report who laid the foundation for strengthening of CARICOM and the integration movement.

“Whether or not the rationale that they identified which forced them to ask for a revised treaty, has either deepened or diminished, I would say that the challenges are greater. But because the challenges are greater one of the tendencies is for us to become regionalist instead of xenophobic.

“Instead of redefining sovereignty towards more regional framework, we turn inwards. Hitler faced a similar issue in his time in the First World War period, where he was facing an economic crisis and you know which choice that he took.

“Sovereignty is malleable, that the nation of citizenship is malleable. Globalization has raised new questions about what is a citizen. What is a state and what sovereignty,” Joseph added.

Another academic, Orlando Marville, the coordinator, Law, Governance and Society at the UWI said political leaders must do more to build a community.

He said ordinary citizens were making integration a lived reality and it's time for the political directorate to speed up the process.

“Very often ordinary people sometimes appreciate the community that we have more than the political agents. We sometimes make promises or agree to things that they know that they are not going to do, until come back to bite them.

“We have to have the sort of commonness that exist for instance among our musicians. I have been in Suriname and heard Surinamese sing bits of songs from Kross Fyah (in Barbados). Alison Hinds sings a song from Suriname as part of her thing and these musicians all believe in our community.

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