By Sir Ronald Sanders
PORT OF SPAIN, Trinidad, Friday July 6, 2018 – As controversy currently surrounds the appointment of a Judge to the Supreme Court of the United States, the ease with which a new President of the Caribbean Court of Justice (CCJ) was installed on July 4, without any political involvement, should be cause for pride in the Caribbean.
In the United States, Judges of the Supreme Court – the equivalent of the CCJ – are nominated by the President but must be approved by the Senate. This process has proven to be contentious and protracted.
Nominations by any President are regarded as attempts to weigh the balance of the Court’s composition in favour of one or other of the two political parties’ ideology. And since a Supreme Court Judge is appointed for life, only death or resignation occasions an opportunity for a replacement.
Toward the end of Barack Obama’s term of office as President, the Senate, which was controlled by the Republican Party, refused to meet to consider his nomination of Merrick B. Garland to replace conservative Justice Antonin Scalia who died suddenly.
With a Presidential election eight months away from President Obama’s nomination, the Republicans were determined to await the result of the election and the possibility of a Republican President nominating a Judge who shared their political thinking.
In the end, the Senate delay prevailed, and the Supreme Court appointment was left to the new President Donald Trump who promptly nominated Neil Gorsuch, a legal conservative favoured by Republicans. Four months after his nomination, Justice Gorsuch was approved by a politically divided senate. The vote was a narrow 54-45 in his favour.
In the last two weeks, another vacancy has arisen on the Supreme Court benches as Justice Anthony M. Kennedy’s announced his retirement. Once again, controversy has arisen over the appointment as the political factions in the U.S. quarrel over the ideological leanings of any nominee by President Trump.
This battle, split down political party lines, is expected to continue right up to mid-term elections for the U.S. Senate in November.
While this public debate takes place in the U.S., the post of Chief Justice of the CCJ transitioned seamlessly with no controversy, and, importantly, no political involvement.
The reason for the seamless transition from Sir Denis Byron to Justice Adrian Saunders as Chief Justice is that there is no role for governments or political parties in the appointment of Justices of the CCJ or the Chief Justice. The search for, and nomination of, the Chief Justice, and other Justices, are carried out by a Commission comprising representatives of bar associations from the region, the Law Faculty of the University of the West Indies and other public service and legal services organisations.
When Justice Adrian Saunders was installed as the third President of the CCJ in Jamaica by Sir Patrick Allen, the Governor-General of Jamaica, the installation was nothing more than ceremonial; the governments of CARICOM having accepted the decision of the regional Commission.
While a head of government of any one of the CARICOM countries could have objected to the Commission’s nominee, he or she would have had to secure the agreement of three-quarters of the number of the other heads of government to carry forward an objection. The possibility of such a development is remote, if not impossible.
The procedure for selecting and appointing the Chief Justice and other Justices of the CCJ underscores the Court’s independence from governments and political parties. So far, the Commission charged with the task has done an outstanding job.
Certainly, the CCJ could have wanted no better quality Chief Justices than they have had in Michael de la Bastide, Sir Denis Byron and now Adrian Saunders. These are all persons, who is addition to their high reputations within the Caribbean region, have enjoyed international respect as their record attests.
Like the Supreme Court of the U.S., which has original jurisdiction over disputes between the states of the United States, the CCJ has original jurisdiction over disputes within the Caribbean Community under the CARICOM Treaty; the CCJ, like the U.S. Supreme Court also has appellate jurisdiction in criminal and civil matters. However, while all CARICOM countries accept the original jurisdiction of the CCJ in relation to the CARICOM Treaty, only five of them have so far acceded to the Court in its appellate jurisdiction.
The arguments in the countries, which have maintained the Judicial Committee of the British Privy Council as the final appellate court, have centred on government influence over the CCJ.
But, as has been clearly shown in this commentary, no government has any influence or control over the appointment of the Chief Justice or other Justices of the Court.
Further, the record of the CCJ manifestly demonstrates that the court has in no way acted in favour of governments. Between 2005 and 2018, the CCJ has dealt with 79 matters involving three governments; 41 of those cases were lost by governments. The Barbados government won 10 cases and lost 21; the Belize government won 10 and lost 10; and the Guyana government won 18 and lost 10.
The argument that governments exercise any control on the judgements of the CCJ is without any foundation. What is more, these judgements are now widely cited by jurists in jurisdictions around the world and are praised for their high quality and judicial analysis.
Dean Barrow, the Prime Minister of Belize, and a lawyer himself, sums up the CCJ in the following terms: “Whatever criticisms may still be aimed at the Court, no one can doubt the breadth of its scholarship and the depth of its reasoning. I say this as one whose administration has suffered several reversals at the Court’s hands. I am nevertheless happy to proclaim my complete confidence in the Court”.
It is time to stop dithering and complete the circle of Caribbean sovereignty by embracing the CCJ – a regional institution that has demonstrated its independence and its quality in delivering justice for the peoples of the Caribbean Community.
Sir Ronald Sanders is Antigua and Barbuda’s Ambassador to the US and the OAS. He is also a Senior Fellow at the Institute of Commonwealth Studies at the University of London and Massey College in the University of Toronto.