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The Independence of the Judiciary and the CCJ

October 19, 2015

by

Dr. Lawrence A. Joseph

     One recurring concern seems to be expressed by a few persons with regards to whether Grenada should opt for the Caribbean Court of Justice (CCJ) as its final court of appeal or instead, stay with the Privy Council. This concern relates to the possibility that the judges of the CCJ may be influenced by political interference. If this is the case one would be forced to conclude that there would be no independence of the judiciary and therefore public confidence in the judicial system would become eroded. In fact constitutionalism itself would be severely challenged.

      Independence of the judiciary is a key element of modern constitutionalism and operates side by side with the doctrine of separation of powers and the rule of law. In effect, constitutionalism is the bedrock of our democratic tradition. It was a Canadian University Professor, W. Walluchow who coined a rather simple but all embracing definition of constitutionalism in his 2004 publication, entitled “Constitutionalism.” He said that “constitutionalism embraces the principle that government can and ought to be legally limited in its powers and that its authority depends on its commitment to those limitations.”

The independence of the judiciary may be affected in different ways. In a   situation where there is no institutional independence, the judiciary may be subject to be unduly influenced by the legislature or the executive. In a situation where there is no individual independence, certain judges may become subordinate to certain agencies of government and those judges may be persuaded to perform their duties in accordance with the whims and fancies of their paymasters. This sort of situation in effect gives rise to the saying: “Who pays the piper calls the tunes”.

Fortunately, the Agreement Establishing the Caribbean Court of Justice which came into effect on 14th February 2001 took all these institutional and human frailties into consideration. The Agreement totally insulates the judiciary both at the Original Jurisdiction level and at the Appellate Jurisdiction level from political interference. The Appellate Jurisdiction of the Court was established in April 2005. The Agreement caters for a Regional Judicial and Legal Services Commission made up of a wide cross-section of persons. Among other things, this Commission has the responsibility of appointing judges and exercising disciplinary control over them. This role is completely out of the hands of the political directorate.

When one looks at the categories of persons who are entitled to membership of this Commission, one would be totally convinced that the judges that would be appointed by this Commission would be totally above board. Moreover those judges would be under continuous scrutiny by the Commission. Membership of the Commission includes persons from regional Bar Associations, Judicial Services Commissions, and from Civil Society, with the President of the Court becoming the Chairman of the Commission.

Yet another mechanism which assists in insulating judges from undue influence by the political directorate is the CCJ Trust Fund. All participating states have signed an Agreement to establish the Fund and already have made financial contributions to it. The purpose of the Fund is to provide the resources necessary to finance the biennial capital and operating budget of the Court and the Commission and is run by a nine-member Board of Trustees. With the establishment of this Trust Fund, the Court does not have to depend on any regular financial contributions from governments to enable its operations. In this situation there would be no cause for applying the saying: “Who pays the piper calls the tunes”.

     The CCJ therefore is well positioned to claim that it is far removed from undue influences coming from the political directorate. Citizens throughout the Caricom region could feel assured that the judgments which would come from the CCJ would be objective and professional. In fact the track record of both the Original Jurisdiction and the Appellate Jurisdiction of the CCJ has been of high esteem over the years.

We have produced several members of the Privy Council like Sir Hugh Wooding, Mr Justice Michael de la Bastide (once President of the CCJ) and Sir Dennis Byron (President of the CCJ). Moreover, the decisions and dicta of our own Caribbean judges have been continuously relied upon throughout the Commonwealth. For example, the judges in the Fiji cases of Prasad (2001) and Qarase (2009) resulting from coups d’etat in that country, relied heavily on the judgment and dicta of our own President Haynes, pertaining to the doctrine of state necessity in the Maurice Bishop murder trial in 1986. There is no doubt that our own Caribbean luminaries over the years have demonstrated in no uncertain terms, their competence and professionalism.

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