The untimely passing in January last of the able and distinguished Justice Jacob Wit of the Netherlands has created a vacancy in the Caribbean Court of Justice (CCJ). The vacancy is required to be filled by the Regional Judicial and Legal Services Commission (Commission) appointed pursuant to Article V(1) of the Agreement Establishing the CCJ signed by the Heads of Government of the Caribbean Community in February 2001. Guyana is not currently represented on the Commission, although it was represented in the past. The Commission consists of the President of the CCJ, who is its Chair, and ten persons nominated by various bodies including a Judicial Service Commission, a Public Service Commission, Secretary General of the Community and Director General of the OECS, Dean of Faculty of Law of the UWI and Council of Legal Education and Bar Associations. The work of the Commission is not publicized.
Guyana and Barbados were the first two countries that joined the appellate jurisdiction of the CCJ. It was expected that Trinidad and Tobago, with a supportive United National Congress (UNC) government and Peoples National Movement (PNM) opposition, would have become a member of the appellate division, which is one reason it is believed that Caricom decided on Trinidad as the seat of the Court, for which Trinidad had canvassed. But the UNC Government lost the general elections in 2001 and thereafter opposed Trinidad and Tobago joining the appellate jurisdiction of the Court. For clarity, The CCJ has exclusive and compulsory authority in interpreting and applying the Revised Treaty of Chaguaramas. All Caricom members are signed on to this jurisdiction. It also serves as a final court of appeal for those Caricom countries which accept its appellate jurisdiction. The intention was that the CCJ will replace the Privy Council as most of the Region’s final court.
The current members of the appellate division are Guyana, Barbados, Dominica, Belize and St. Lucia. Referendums in St. Vincent and Grenada seeking mandates to join, which were required by their constitutions, were defeated. Thus, the majority of Caricom countries prefer to maintain the distant, expensive and inaccessible Privy Council as their final court of appeal, rather that signing up to the appellate division of the CCJ, which is within immediate reach. One apparent reason is the alleged deficit in quality of judges of the CCJ as compared to those of the Privy Council. But there is no substance to this argument when examining the decisions of the CCJ, except perhaps in cases in which I appeared and where the court inexplicably disagreed with me. Joke aside, the CCJ preserved Barbados’s elections’ integrity in 2018 and saved Guyana’s democracy in 2019-2020. Even if Guyana were a member of the Privy Council, its inaccessibility would have deprived Guyana of the possibility of saving its democracy and the same would have applied to Barbados. The only people who have expressed dissatisfaction with the CCJ were the losing politicians in 2018 and 2019-2020.
Only a very few of the hundreds of cases which have been heard and the decisions given by the CCJ would have reached the Privy Council for the reasons outlined above. It means that appellate justice is now within reach of the people of the countries within the Region that have access to the CCJ’s appellate jurisdiction. Justice, as important as any other constitutional right, which was previously unavailable to the vast majority, can be provided to any citizen of a Caricom country which decides to sign up to the CCJ’s appellate jurisdiction.
The composition of the first court in 2005 consisted of two Trinidadians, one of whom was appointed as the President, two Guyanese, one British, one Dutch and one St. Vincentian. The composition today is two Trinidadians, one Jamaican, one Belizean, one Barbadian and one St. Vincentian, who is the only Judge remaining from those appointed in 2005. He is Justice Adrian Saunders, the current President. In the intervening period a Kittitian, Sir Dennis Byron, was appointed President of the Court. Of the fourteen judges who have been appointed since 2005, only two have been women, one of whom was Guyana’s own, the late Desiree Bernard, and Justice Rajnauth-Lee of Trinidad and Tobago, who is a current member of the Court.
It is assumed that the Commission seeks to appoint the best qualified persons to fill vacancies and does not indulge in any extraneous effort to balance representation on the Court of member states of Caricom or of the members of its appellate division from which the overwhelming majority of its cases emanate. Nevertheless, it is hardly likely that issues such as gender balance, ethnic balance and, to a lesser extent, country representation, escape the notice of members of the Commission when considering appointments. Guyana, or a Guyanese woman, therefore, can have no expectation of priority in the filling of the current vacancy. Nevertheless, there is no reason why Guyanese applicants, if there are any, cannot expect favourable consideration based competitive ability. There are several Guyanese, both male and female, who would discharge responsibilities as a Judge of the CCJ with distinction. If there are applicants from Guyana, as a Guyanese, I would hope one would be appointed.