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.
Read more: http://www.caribbean360.com/index.php/news/1031923.html?print#ixzz2jzEvETA7