Privy Council asked to declare its position on A&B’s move to the CCJ

The key architect of the Caribbean Court of Justice (CCJ) has called for an explanation by the Privy Council, as to why its justices have changed their position on allowing Commonwealth nations to access its court.

Sir David Simmons, who is also the former Attorney General and former Chief Justice of Barbados, made the call for the clarification after the President of the Judicial Committee of the Privy Council, Lord David Neuberger announced last week that Antigua & Barbuda was welcome to stay with the judiciary.

“The Privy Council has a duty to explain to the people of Antigua & Barbuda, how this position differs from that adopted by the first President of the Supreme Court of the United Kingdom, Lord Phillips in 2009,” Sir David stated.

Lord Neuberger said that the Judicial Committee of the Privy Council (JCPC) countries were welcome to stay with the judiciary, if they so desire and that plans were under way to assist these nations in accessing the court.

Lord Neuberger’s remarks were made in a pre-recorded interview, last week, during the Youth Forum education campaign — part of a three-month movement to adopt the CCJ as the island’s final court of appeal.

But the UK judge’s comments were quite contradictory to those published by BBC Caribbean, in 2009, when Lord Nicholas Phillips said Law Lords on the Privy Council were spending a ‘disproportionate’ amount of time on cases from former colonies, mostly in the Caribbean.

He added that “in an ideal world” Commonwealth countries — including those in the Caribbean — would stop using the Privy Council and, instead, set up their own final courts of appeal.

According to Sir David, what was more alarming is that the former UK judge had considered drafting Court of Appeal judges to take some of the pressure off their Supreme Court.

The former Barbados Chief Justice also said that the Privy Council’s claim of attempting to improve accessibility to its justice system is just a façade.

“They made an attempt two years ago to go up to the Bahamas – they did go up to the Bahamas – at great expense to the Bahamian Government, as an attempt to suggest that they were going to make justice more accessible to people from the region but they have not been back since because it was too costly for the Bahamian Government,” Sir David said.

Sir David believes that Lord Phillips was sincere, in that judges had found themselves burdened by issues that “didn’t really resonate with them”.

They are more concerned about being members of the European community, he added.

Source:  Daily Observer, Antigua

http://antiguaobserver.com/privy-council-asked-to-declare-its-position-on-abs-move-to-the-ccj/

UWI lecturer says CCJ is a conundrum

Source: St Lucia Times       

UWI lecturer, Doctor Hamid Ghany, has defined the Caribbean Court of Justice (CCJ) as a “conundrum”, asserting that Caribbean people are being asked to accept the court as the final court of appeal.

However Ghany, who is a Senior Lecturer in Political Science, told the Times that the first President and Chief Justice of the CCJ, Michael de La Bastide and the current one, the Right Honorable Sir Dennis Byron both became members of the Privy Council in 2004.

The UWI senior lecturer expressed the opinion that as a result, the convention has emerged of having the Chief Justice of the CCJ become a member of Her Majesty’s Privy Council, while at the same time the region is being urged to cut ties with the council.

“As someone who has been involved in drafting two constitutions that’s set up the CCJ as the final court of appeal, I am not objecting to the transfer,” Ghany explained.

The UWI lecturer  said he was objecting to the manner in which the concept is being sold to the public.

As far as he is concerned, the CCJ should be sold to the public as being a court that has a superior record of delivery and a certain level of efficiency of service.

“It should not be sold to the public on an anti-colonial basis when you have persons who are members of Her Majesty’s Privy Council who have knighthoods in the same breath telling us we should end the colonial connection,” Ghany observed.

He recalled having asked publicly for an explanation as to why the two lines of argument exist.

Ghany has called on the CCJ to abandon the anti-colonial argument, which constitutes an “intellectual trap.”

“They need to advocate for the court on the basis that it can be more efficient and will serve the Caribbean more efficiently than the Privy Council does,” he declared.

The UWI lecturer, who is Coordinator of the Constitutional Affairs and Parliamentary Studies Unit, Faculty of Social Sciences, UWI St Augustine Campus, delivered a lecture last night at the UWI Open Campus here.

Source: http://stluciatimes.com/2016/03/18/uwi-lecturer-says-ccj-conundrum#

CCJ judge says criminal justice ‘broken’ in most Caribbean countries

A judge with the Trinidad-based Caribbean Court of Justice (CCJ) says he believes that the criminal justice system in most, if not all Caribbean countries, is “broken”.

Addressing the inaugural meeting of the Advisory Committee on Criminal Justice and Magisterial Reform, under the Judicial Reform and Institutional Strengthening (JURIST) Project, Justice Adrian Saunders said, “it would probably be a fair characterisation to say that in most, if not all of our states, today, the criminal justice system is broken.

Justice Saunders told the two-day meeting that in one CARICOM (Caribbean Community) state, recently, a man who had been in custody for nine years on a murder charge had his case dismissed before the judge, who found that he had no case to answer.

“Nine years in custody; no case to answer,” Saunders emphasised, saying that in another case, a man had been charged with a fairly simple traffic offence and was adamant that he was not guilty.

There is no dispute about the facts, Justice Saunders told the audience, adding that the only issue is the legal interpretation of a very small section of the traffic law in that country, which he did not identify.

“The man and his lawyer interprets that section one way and the police interpret it another way,” the judge said.

He said the case has been going on for over two years and throughout that time, the accused person and his lawyer has been spending two to three “entirely unproductive hours in court only to be told that they must return the following month”.

Justice Saunders gave a third example, saying that judges at the CCJ recently heard an appeal in a case in which a man has been found guilty of rape and had been sentenced to jail.

“He appealed all the way up to us (CCJ). When we examined the documents in the appeal, we discovered that although the man was still in custody, he really should have been released sometime before, because he had already served his sentence,” Justice Saunders said.

“Each of you must have your own examples because these are not uncommon things that happen throughout the region,” he told the gathering, which included judges, directors of pubic prosecution and other members of the judicial system from across CARICOM.

“Frankly, viewed objectively, all of this amounts to an abuse of the people of the Caribbean, especially because it not only involves a massive wastage of time and resources, but it also implicates the liberty of the individual, in a context where there is very little accountability,” Saunders said.

“Caribbean people deserve a whole lot better and it is incumbent upon those who work in the justice sector to work towards its improvement.”

Justice Saunders, however, said that his comments are not to say that there are not valiant efforts being made at introducing very useful reform initiatives.

He said reform initiatives are underway in St. Vincent and the Grenadines and other countries.

“But, it is also true to note that criminal justice reform is not an easy task. It is certainly not as easy to accomplish as civil justice reform,” he said.

The Advisory Committee was established under the JURIST Project and is tasked with reviewing criminal justice and magisterial reform initiatives in the Caribbean and making recommendations for improving the quality of justice delivery and reducing delay in the criminal justice system.

The JURIST Project is a five-year regional Caribbean judicial reform initiative funded under an arrangement with the Government of Canada.

It is being implemented on behalf of Global Affairs Canada and the Conference of the Heads of Judiciary of CARICOM, by the Caribbean Court of Justice (CCJ), which was appointed by the Conference as its Regional Executing Agency (REA).

The project is working with judiciaries in the region to support their own efforts to improve court administration and strengthen the ability of the courts and the judiciary to resolve cases efficiently and in a timely fashion.

Criminal Justice and Magisterial Reform falls under the project’s overarching goal of delay and backlog reduction in courts.

The project is currently being implemented in at least six countries but will be expanded to include other territories in the region.

Special attention will also be paid to building the capacity and skills of judges, court administrators and court personnel to deliver services that address the needs of women, men, girls and boys.

The Advisory Committee is comprised of a broad range of stakeholders from across the region and the criminal justice system including appellate and trial court judges, magistrates, Directors of Public Prosecutions, and a criminologist among others.

Source: http://www.nycaribnews.com/latest-news/ccj-judge-says-criminal-justice-%E2%80%98broken%E2%80%99-most-c%E2%80%99bean-countries

CCJ celebrates 10th birthday

Trinidad and Tobago will in due course accept the Caribbean Court of Justice (CCJ) as this country’s final court of appeal, to replace the London-based Privy Council.

This view was expressed by the CCJ’s President Sir Dennis Byron, who formed this expectation based on statements being made by local officials. The question now is the timing for this to become a reality.

Sir Dennis, 77, a Leeward Islands scholar born in St Kitts and an attorney for almost 50 years, during which time he has held prestigious positions as a regional and international jurist, scoffs at the opinion of those who say the CCJ is inferior to comparable legal institutions abroad.

Q: Sir Dennis, the Caribbean Court of Justice is observing its tenth anniversary this month. Exactly what is there to be celebrating about?

A: (In his Henry Street, Port-of-Spain, headquarters of the CCJ Wednesday morning) I think we have a lot to celebrate including the fact we are in existence for ten years and it’s a great opportunity to serve the citizens of our region.

The court operates in two distinct jurisdictions: one is the original jurisdiction which deals with disputes arising out of the interpretation and application of the Single Market and Economy Revised Treaty of Chaguaramas. Secondly, final appeals from countries within the region. And during our existence we have done extensive work in both areas, 16 cases have been filed in the original jurisdiction.

One of them, which we all can remember, which received a lot of public attention is the matter where the young lady from Jamaica brought proceedings against the government of Barbados and that case demonstrated the relevance of the CCJ.

Therefore you do have something to crow about? 

(A slight smile) Well, I don’t like to use that concept but the point is we have in fact done a lot of work, it has been well done and it has been received by the persons who have benefited from the adjudication of the court.

In your 2011-2013 report you said words to the effect that one of the goals of the CCJ is to develop a strong regional jurisprudence system, yet there is this bugbear involving Trinidad and Tobago. Has that put a damper on your celebration?

(Decisively) No. I don’t think that Trinidad and Tobago is a bugbear (A heavy sigh). People have always been trying to get me to speak about what they call political will and I have tried to avoid that because …

Yes and I suspect that it would not be prudent to do so...?

(Interjecting) Well, No. No. It is not that I cannot do it but I am just saying I don’t agree with the perceptions that have prompted those questions. As I see it…if you look at government as an institution, the Government of Trinidad and Tobago has done a lot to support and develop the work of the CCJ.

That is true Your Honour, but isn’t it a fact that Trinidad and Tobago is yet to make the CCJ our final court of appeal, with Prime Minister Kamla Persad-Bissessar saying a few years ago this country was now willing to let the CCJ deal only with criminal matters from T&T?

Yes.

Therefore isn’t it correct to say that Trinidad and Tobago is not yet fully on board?

Well, you see again I do not like that language because in my opinion Trinidad and Tobago is fully on board with the court; it has signed the treaty establishing the court, it has paid up in full its financial contributions to the court’s operations.

The court was set up on the basis that it would be completely independent of political interference and one critical area of independence is financial independence, so the CCJ does not have to depend on the monthly or annual subventions from any member government. Consequently, a unique form of financing was developed through a (US)$100 million trust fund which is funded through the interests derived from that money. Trinidad and Tobago’s contribution to that was just over 29 per cent, approximately (US)$29 million and they paid that in full.

It is only one thing they have not done and that is abolish appeals to the Privy Council and establish the CCJ as its final appeal court.

In your view Sir Dennis, wouldn’t it be a more acceptable proposition for Trinidad and Tobago to make the CCJ its absolutely final court of appeal?

Of course. I think it is overdue. It would be better for Trinidad and Tobago, it would be better for the court. It would be better for the region as a whole if the vision of the founding fathers were fulfilled in this matter, so we are ready and willing to serve the community in this manner.

Your Honour, if my memory serves me right, I think the present T&T administration, when it was in the opposition, it came out against the CCJ complaining about its ethnic composition…?

Well the CCJ has a component of seven judges, the President and six others and the qualifications for being selected as a judge are very clearly spelt out. In making appointments the Regional Judicial and Legal Service Commission can only appoint 

people who apply to become judges and then those persons go through a competitive process. 

The criteria that is utilised is high moral character, intellect, analytical ability, sound judgement, integrity and understanding of people and the society.

Obviously, legal knowledge is a critical part of that and these are the factors that are utilised to ensure that the best candidates are selected.

Now, you have raised the issue of diversity here because that is what is really being said: that a court should somehow or other reflect persons that it represents and we all agree that that is desirable. Our court, however, cannot function on the basis of a quota system where you say you must have this number of persons simply because of the numbers.

But one has to trust that the issue of diversity is a factor which would be taken into account in the selection process.

Are you suggesting that a person of a certain ethnic background has not yet applied to be a judge of the CCJ?

(A somewhat perplexed expression) Well, I don’t know exactly what you expect me to say in response to that. If you look at the seven members of the court—you have an Englishman, a Dutchman, you have a Trinbagonian who is a woman of East Indian descent who is the most recently appointed judge, you have a judge from Jamaica, you have two from the Eastern Caribbean and one male judge from T&T. So I think you have quite a mixture which demonstrates that type of diversity of the court (which) is far superior to the diversity of courts from other countries.

Based on your interaction with the Trinidad and Tobago Government, perhaps even at the level of the Prime Minister, do you have any sort of indication about how soon this country would come on board fully?

Well, you use that word indication, I cannot speak to that, but what I can say is that expectation and I do think it is likely that T&T is ready to go forward. I have heard the Prime Minister saying that it is inevitable in this regard, the question really is when is the right time to do it.

And I further believe that her readiness to come on board would most likely be influenced by statements from significant constituencies in the country. The most important in this context is the Law Association and I felt really gratified when the new president of the association said last year T&T was now firmly committed to ensure that the CCJ became the final appellate of Trinidad and Tobago.

Your Honour where do you see the CCJ in the next ten years?

In the next ten years the CCJ will be firmly entrenched as the final appeal court for all countries of Caricom and in fact it is quite interesting, we have already received indications that courts which are not within the Commonwealth are making enquiries asking us what is the process of making the CCJ their final court of appeal.

Finally Sir Dennis, how do you view the dispensing of justice by the CCJ in comparison to that of let’s say the Privy Council?

There are many answers to that question and the one that is most relevant at the moment has to do with the opportunity for access to justice. Take, for example, the court of appeal in Trinidad and Tobago gives many judgements each year and very few appeals are made to the Privy Council. 

That could mean two things: litigants are satisfied and they do not want to appeal. It could also mean that if they want to appeal it is too expensive and complicated to do so...which is it?

If it is the latter, having the CCJ gives the citizens an opportunity to get access to justice in Trinidad and Tobago in that regard and that’s the experience we have had in the countries where the Privy Council is the final court of appeal.

Source: http://www.guardian.co.tt/news/2015-04-11/ccj-celebrates-10th-birthday

Published: 

Sunday, April 12, 2015 

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.

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

THE ROLE OF THE JUDICIARY IN PROMOTING GENDER EQUALITY

THE ROLE OF THE JUDICIARY IN ... - Caribbean Court of Justice

By: The Hon. Mme. Justice Désirée P. Bernard, O.R., C.C.H. Judge, Caribbean Court of Justice

Over the past one and one half days we have been addressed about and have discussed the topic of Gender and the Law in all aspects - gender-based violence, gender and judging, human rights of victims and perpetrators of violence, equality in division of property, gender equality and international treaties as well as gender in the work-place, masculinity and violence, sentencing and access to justice. I asked myself what more was left to be said, and decided that perhaps a historical overview of earlier judicial colloquia may form a backdrop to all of the issues we have so far considered.

The last two decades have revealed increasing recognition of women's rights as human rights, no doubt facilitated by the ratification by an overwhelming number of member states of the United Nations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The effectiveness of any treaty or constitutional instrument depends in large measure on its application and interpretation. In this regard judges are strategically placed to determine such effectiveness by utilisation of international treaties in their judgments particularly in promoting and enhancing women's rights. It was recognised that the historic conservatism of the judiciary resulted in a reluctance to depart from tradition and time-honoured precedent, and a change of attitude was essential especially at the national level in order to advance the status of women.

In pursuance of this objective in 1994 the Commonwealth Secretariat, the Commonwealth Foundation and the Commonwealth Magistrates and Judges Association initiated a series of judicial colloquia on the utilisation of international human rights standards in domestic litigation. The result of this first colloquium held in Zimbabwe for senior judges of the African region was the adoption of the Victoria Falls Declaration of Principles for Promoting the Human Rights of Women. These Principles reflected the vital function of an independent judiciary to interpret and apply national constitutions and laws. One of the principles recognised that discrimination against women could be direct or indirect, and indirect discrimination requires particular scrutiny by the judiciary.

With regard to international human rights instruments the Victoria Falls Declaration recognised that these instruments have inspired many constitutional guarantees of fundamental rights and freedoms, and as such they should be interpreted generously, particularly those pertaining to women in relation to discrimination. Further, it is essential to promote a culture of respect for international and regional human rights norms, and particularly those affecting women which should be applied in the domestic courts of all nations and given full effect. They ought not to be considered as alien to domestic law in national courts.

Read more:

www.ccj.org/.../THE%20ROLE%20OF%20THE%20JUDICIA...

FAREWELL: Outgoing CCJ president pleased regional court has silenced critics http://www.cananews.net/ Sat, 16 Jul 2011 08:40:00 PORT OF SPAIN, Trinidad, CMC – Outgoing President of the Trinidad-based Caribbean Court of Justice (CCJ), Michael de la Bastide Friday he was satisfied that the regional court has gone a long way “towards persuading the doubting Thomases” and silencing critics about its performance. Peter Richards PORT OF SPAIN, Trinidad, CMC – Outgoing President of the Trinidad-based Caribbean Court of Justice (CCJ), Michael de la Bastide Friday he was satisfied that the regional court has gone a long way “towards persuading the doubting Thomases” and silencing critics about its performance. Speaking at a special sitting of the court to mark his retirement, Justice de la Bastide, 74, said that six years after the court was inaugurated, “I venture to suggest the Court’s record of performance to date suggests that it is capable of assuming the dual responsibility of interpreting and applying the Revised Treaty of Chaguaramas and …shaping and developing the regional jurisprudence as the final court of appeal for the English-speaking Caribbean”. The CCJ which has both an original and appellate jurisdication, also operates as an international tribunal interpreting the Revised Treaty of Chaguaramas that governs the Caribbean Community (CARICOM) Single Market and Economy (CSME) and the regional integration grouping. However while most of the countries are signatories to the original jurisdiction, only Barbados, Guyana and Belize are members of the appellate jurisdiction of the court that was established in 2001 to replace the London-based Privy Council as the region’s final court. Justice de la Bastide, the CCJ’s first president, said that with only three countries subscribing to the court’s appellate jurisdiction, “we can hardly claim complete success in winning the confidence of peoples of CARICOM. “I think however we have gone a significant distance towards persuading the doubting Thomases and disarming our critics. This I suggest is due to three factors. “The first is the favourable commentaries which our judgments have for the most part received. The second is the user friendly techniques and technologies which the Court has adopted to facilitate access to it and the efficient and timely disposition of cases. The third is the growing appreciation by the public in general and lawyers in particular of the measures which the CARICOM heads of government have to their credit taken to ensure the independence of the Court.” He said these measures are to be found in the various instruments by which the CCJ and its support bodies, the Regional Judicial and Legal Services Commission (RJLSC) and the CCJ Trust Fund. “The architecture of these bodies, their composition, powers and functions and the relationship between them, was carefully and consciously designed after consultation with important stakeholders. The primary purpose was to protect the Court from political and other extraneous influence and to give it every chance of becoming a quality court. “The steps taken have evoked the admonition and envy of many other regional and international tribunals,” he said. But the outgoing head of the Trinidad-based court, said he was using the opportunity of the special sitting “to warn and advise strongly against any proposal, however well intentioned, which would remove or abridge the Court’s rights in relation to its own budget in the name of correcting an alleged but illusory ‘flaw’ in the governance structure of the Court and Commission. “In this connection I would remark in passing that I have great respect for businessmen. As they say, some of my best friends are businessmen, but the training and experience of businessmen do not equip them to identify and assess the needs of a court, far less one with two jurisdictions! “Perhaps the point is more tellingly made in the penultimate recital in the preamble to the protocol which was agreed by the Court, the Commission and the Trustees to govern their relations,” he added. Justice De la Bastide said before tampering “with the carefully balanced architecture of the Court and Commission, we would also do well to remember that no one has yet devised a means of insulating businessmen from political pressure”. During his farewell speech, the outgoing CCJ president paid tribute to the people who had been instrumental in the successful operations of the court over the last six years adding that they will be fortified on September 1 by the assumption of office by the new President Sir Dennis Byron. “They will constitute a court which in my estimation, can be relied upon to perform to a standard of excellence that can match that of any court in the Commonwealth - or indeed on this planet,” he added. Justice de la Bastide also acknowledged the role played by the RJLSC, reiterating that “in every case, their appointment as Commissioners is free of any hint of political influence. “ The confidence of the Heads in the independence and judgment of the Commission is attested to by the protocol to the Agreement which entrusts the Commission with the responsibility of deciding whether to extend the tenure of the President beyond the normal retirement age notwithstanding that the President is also Chairman of the Commission subject to the caveat that the Chairman shall not take part in any deliberations or decision of the Commission relating to the matter.” Justice de la Bastide told the special sitting that he had “the good fortune as President to captain a very strong team indeed. “That being the case, two things follow. One is that just as the captain of a weak team may escape blame for its defeat, so too the captain of a strong team must acknowledge the role of his team-mates in achieving a successful result. “The other consequence is that the team must not be allowed to disintegrate or to deteriorate. Hence, my conviction that it would be nothing short of a tragedy for this region if the CCJ were allowed for whatever reason or by whatever means either to depart the scene altogether or to compromise the standards of excellence which it has set itself and has so far achieved.” The outgoing CCJ president said he did not think that “future generations will easily forgive us for such a wanton waste of a unique opportunity. “I make no apology for saying I am proud of this Court and I am comforted by the knowledge as I take my leave that it is in good hands. Naturally, I shall continue to follow its progress with great interest and attention,” he added.

What’s up with the CCJ?

SOURCE: June 4, 2011 | By KNews | Filed Under Letters

Dear Editor,

There are three pressing questions that must be asked of the Caribbean Court of Justice (CCJ): Why has it not filled its two existing vacancies?

Why is its constitutional age limit of 70 years not being enforced? And why it has never had an East Indian Justice on the court?

Collectively, these three questions represent a worrying trend that may seriously undermine the credibility of the court if they are not addressed forthwith.

The Caribbean Court of Justice (CCJ) is the Caribbean regional judicial tribunal that was established on 14 February 2001. There were 10 initial members: Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; Suriname; and Trinidad & Tobago. Two other member states, Dominica and St. Vincent & The Grenadines, joined on 15 February 2003, bringing the total members to 12. he CCJ came into force on 23 July 2003, and the CCJ was inaugurated on 16 April 2005 in Port of Spain, Trinidad & Tobago.

Currently, two of the judicial nine seats are vacant. Why is this entity that purports to represent the CARICOM region unable to seat a full court?

Are these ongoing vacancies symptomatic of the low esteem the legal profession has for this body? It is worthwhile getting an answer as to what’s up with the CCJ.

Are the constitution age limits being ignored given the apparent inability to attract a full slate of judges?

My understanding is that there is an age limit of 70 and two of the current Justices, Michael de la Bastide at 74 and Desiree Bernard at 72, are now beyond that age. Is the highest court in the region ignoring its own rules? What’s up with the CCJ?

How come there has never been an East Indian Justice on the Court? Given the East Indian majority in population in Guyana and Trinidad and Tobago, and the glorious legal heritage that east Indian have added to the profession via the Luckhoos, Persauds and Singhs it does beg the question why no East Indian? West Indies cricket has suffered from racial discrimination through its history which is in no small part responsible for the sport being on its death bed. Is its legal system doing the same? It would be nice to get an honest answer.

Vijay P. Kumar

CCJ to hear first Belize appeal on Monday

by Global News Staff

Source: Caribbean News Now

Published on November 26, 2010

BELMOPAN, Belize -- The Caribbean Court of Justice (CCJ) will hear the first appeal from Belize on Monday, and it will be an appeal that has regional interest and perhaps will create Caribbean jurisprudence, since it involves misfeasance or alleged misconduct by government ministers.

The appeal was filed by two ex-ministers of government, Florencio Marin, Sr. and Joe Coye, after the current Dean Barrow administration took them to court for nearly a million dollars in damages as part of a misfeasance lawsuit.

The Belize government initiated the suit against the two former ministers for $924,056, which the attorney general claimed government had lost in the sale of 56 acres of land.

Former Chief Justice Abdul Conteh dismissed the government's case after he raised a technical question of whether the government was pursuing the right kind of claim against the former ministers.

The former chief justice ruled that the attorney general cannot file a misfeasance action in the Supreme Court, but could have pursued the route of filing a malfeasance claim for criminal sanctions in the Magistrate's Court.

The attorney general successfully appealed to the Belize Court of Appeal, which ordered that the Supreme Court hear and determine the case filed by the government.

The two former ministers then appealed to the CCJ, which has replaced the Privy Council as the final court for Belize.

The appellants’ attorneys, as well as lawyers for the respondents (the Belize government), had a pretrial hearing via teleconference.

The president of the CCJ, Michael de la Bastide, is reported in the Amandala newspaper as saying, "I think this is a matter of great public importance -- that is whether the members of a government which has replaced by another government are liable to be sued by the attorney general on behalf of the state for loss which they have allegedly caused the state by their misconduct -- or their misfeasance to use the technical word -- while they were in office."

"This is a matter that I am sure is not only of great importance (I would have thought) to the people of Belize, but indeed to the people of this region," he added.

He noted that a CCJ ruling "...would be describing what the law is finally for a least some of the countries in CARICOM" and particularly for Barbados and Guyana, which are the only other two nations to have accepted the CCJ's full appellate jurisdiction.

Four Belizean lawyers will travel to Port of Spain for Monday's hearing.

Dr Elson Kaseka and Magali Marin-Young are appearing for the ex-ministers, while Lois Young SC and senior crown counsel Nigel Hawke of Guyana will represent the attorney general of Belize.

It is understood that the entire panel will sit to hear this important appeal: President de la Bastide, Justices Jacob Wit, Desiree Bernard, Adrian Saunders and Rolston Nelson.

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 guardian.co.uk,

Published: Friday 10 September 2010

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.

EDITORIAL- Mr Golding and the CCJ

Published: Thursday | June 17, 2010

Source: Jamaica Gleaner

It is perhaps more than symbolic that the Jamaican authorities had no objection that Governor General Sir Patrick Allen this week administered the oath of office to Professor Winston Anderson as a judge of the Caribbean Court of Justice (CCJ), and that Prime Minister Bruce Golding spoke in appreciative, though measured, terms of the performance of the CCJ in its five years.

The decisions of the court, Mr Golding said, had inspired confidence and the justices in their rulings had "sought to lay a foundation on which the future of the court can be built".

If we are right, Mr Golding's posture had to do with more than the fact that Justice Anderson, until lately the executive director of the Caribbean Law Institute in Barbados, is a Jamaican of whom the prime minister is understandably proud.

It seems likely that Mr Golding will at next month's summit of Caribbean Community (CARICOM) leaders indicate that his government has completed its re-evaluation of Jamaica's absence from the court and is now ready to begin to plan its accession. That is the difficult bit.

Vehement opposition

The governing Jamaica Labour Party (JLP), under Golding's leadership and before, used to be vehemently opposed to the CCJ in its role as the court of last resort in criminal and civil matters.

Although they did not always express it this frankly, an underlying theme of those who opposed the court was mistrust for the moral fibre and the intellectual and jurisprudential acumen of regional judges. The more openly expressed concern, however, was for the independence of the CCJ, which the party continued to advance even after it was clear that the court was insulated against political intrusions.

Mr Golding's party guided a successful constitutional challenge at the Privy Council against Jamaica's participation in the CCJ as was then contemplated. The PM, though, would have had his mind concentrated by last October's complaint by Lord Nicholas Phillips, the chief justice of Britain's new Supreme Court, that Privy Council cases occupied too much of the time of his judges. He hinted at farming out some of these cases to judges of lower courts.

The JLP's retreat from its former positions may cause Mr Golding political discomfiture. More problematic, however, is how he manages the accession to the CCJ - assuming this is the course being contemplated - given the Privy Council's ruling that the CCJ first has to be constitutionally entrenched before it can be a superior court to Jamaica's Court of Appeal. This would require special parliamentary majorities and, ultimately, a referendum.

Standing Parliamentary committee

That seems doable. The People's National Party's is supposed to be a strong supporter of the CCJ, which it had a major hand in fashioning when it formed the government. But strange things happen in politics.

Which is why we repeat our suggestion for the establishment of a standing parliamentary committee on security, legal and justice matters, through which there can be constant cross-party dialogue on critical issues - including the CCJ. Additionally, there is probably the need for a summit between Mr Golding and Opposition Leader Portia Simpson Miller to start to thaw the political freeze that has continued for too long.

Additionally, Mr Golding should unveil any new thinking on the CCJ to the Jamaican people before he takes it to CARICOM.

Professor Anderson to replace Justice Duke Pollard

Jamaican appointed Judge in CCJ

Source: Kaieteur News

MARCH 30, 2010

…as Justice Duke Pollard retires

By Oscar Ramjeet

The Regional Judicial and Legal Services Commission (RJLSC) has appointed a Jamaican as the newest judge in the Caribbean Court of Justice (CCJ).

He is Professor Charles Anderson, an academic who replaces Guyanese Justice Duke Pollard, who goes into retirement on June 10 next, when the new judge will assume duties.

Justice Anderson is the first Jamaican to be appointed to the regional court. The omission of a judge from Jamaica, the most populated in the Anglophone Caribbean, has been criticized, especially since that country contributes 27 per cent of the costs to run and administer the Court.

Former Attorney General of Jamaica, Dr. Osward Harding, who is now the President of the Senate, had indicated to me two years ago that several highly qualified Jamaicans, including a few outstanding Senior Counsel were overlooked five years ago.

Now that that a Jamaican has been appointed as a Judge, one wonders if this will accelerate the powers to be in Kingston to join the Appellate Division of the Court.

Justice Pollard’s appointment in the regional court was criticised in some quarters since he was never in active law practice, never served as an advocate either as Counsel or prosecutor and never sat as a judge. He has been an academic throughout his legal career and was involved in preparatory work for the establishment of the CCJ.

The tenure of CCJ judges is 72 years, but Pollard was given a three-year extension two and a half years ago.

Since Justice Anderson’s appointment was criticised, legal practitioners want to know why the RJLSC chose a law professor rather than an experienced judge.

Justice Anderson holds a law degree from the University of the West Indies and a Doctorate in Philosophy (Phd) in international law from the University of Cambridge. For most of his career, he has been a member of the Law Faculty of UWI.

He was appointed lecturer in 1994, senior lecturer in 1999 and was made professor in 2006. He spent a year as a Research Fellow at the University of Sheffield between ‘1994 and 1995, and a year as senior lecturer on fellowship at the University of Western Australia in 1996. He is currently the executive director of the Caribbean Law Institute Centre (CLIC).

Professor Anderson and Professor Simeon Mc Intosh were involved during the past two years travelling around the Caribbean participating in seminars promoting the CCJ, and urging governments to join the Appellate Division of the Regional Court.

The lone female judge in the Court, Desiree Bernard, who was Chief Justice and former Chancellor of Guyana will reach the age of retirement in March next year, and already there are discussions in the legal circle whether she will be given an extension, and if not, whether another female will be appointed to replace the distinguished Guyanese.

Justice Bernard had many firsts in her homeland - the first female judge, first female Court of Appeal Judge, first female Chief Justice, first female Chancellor of Guyana and first female Head of the Judiciary in the Caribbean.

She is also the first Solicitor to be appointed a Judge, the reason being that the legal profession in Guyana was fused in 1979 and Justice Bernard, a practising Solicitor, automatically became an Attorney at Law since both Solicitors and Barristers were known as Attorneys as of November 1979.

Justice Bernard was appointed a High Court Judge in 1980. I recall writing a piece in the local newspapers under the headline “High time for a female Judge in Guyana” and I suggested her appointment although she was from the practising Bar, and the following week she was named.

Belize will soon be on board as the third jurisdiction to join, and I look forward for Dominica, and Jamaica to do so soon rather than later. I am also hopeful that Trinidad and Tobago will consider joining now that there is a new opposition leader, Kamla Persad Bissessar, a West Indian trained attorney who served as Attorney General under the Basdeo Panday administration.