One of the least expressed moral lessons of the downright nasty Senate confirmation hearings that send Judge Brett Kavanaugh to the United States of America Supreme Court on Oct. 6 was the open, accountable, and democratic manner in which he was selected.
It is a moral lesson that should be taught to supporters of the Caribbean Court of Justice (CCJ), a body whose members are certainly not selected in a transparent, accountable, and democratic fashion. The American confirmation hearings are also a teachable moment for the citizens of Antigua and Barbuda and Grenada who will be asked to accept the CCJ as their final appellate body today, Nov. 6, the same day that the American people will be voting in their mid-term congressional elections.
The moral lesson is simple and straightforward. The United States fought a long and bloody Revolutionary War (1775-1783) to establish a free nation and an elected and representative government. Having been so mistreated by the same British colonial masters we also suffered under in the Caribbean for some 300 years, the new union of the former 13 colonies discarded many of its British traditions when it crafted its constitution. Past indignities at the hands of hegemonic colonial overlords is why so many of America’s public offices, including appointment to many judicial positions, are based on transparent competition, impartial assessment, and citizen election.
The Supreme Court of the United States (sometimes referred to by the acronym SCOTUS) is the highest court of the United States. Established under Article III of the U.S. Constitution in 1789, it has original jurisdiction over a small range of cases, such as suits between two or more states. It also has ultimate (and largely discretionary) appellate jurisdiction over all federal court and state court cases that involve issues of constitutional or statutory law.
According to federal statute, the court consists of the chief justice and eight associate justices, all nominated by a democratically elected president and confirmed only after long and careful review by a majority vote in the 100-seat Senate. Once appointed, justices have lifetime tenure unless they resign, retire, or are removed from office by a Senate vote of impeachment.
In short, fair hearings, careful background checks by independent agencies, and approval in an open vote by the democratically elected members of the Senate is how the United States selects members of SCOTUS. We witnessed all of this and more in the Judge Kavanaugh appointment. SCOTUS is a quintessential people’s court.
Not so the CCJ.
The CCJ, perhaps the newest supreme court in the world, was established by Caribbean Community (CARICOM) members between 2001 and 2003 in total and deliberate disregard for the U.S. and other similar examples. This is easily seen in their decision to proceed along the ancient path of colonial subjugation by allowing justices to be selected in a secret, unaccountable manner by various members of the CARICOM legal establishment and other unelected hangers-on.
In particular, the Regional Judicial and Legal Services Commission (“the Commission”) is an 11-person body composed of: two persons nominated jointly by the Organisation of the Commonwealth Caribbean Bar Association and the Organisation of Eastern Caribbean States Bar Association; the Chairman of a Public Service Commission of a “Contracting Party” [a head of government of one of 12 of 15 CARICOM signing countries]; two persons from civil society nominated jointly by the Secretary-General of CARICOM and the Director General of the Organisation of Eastern Caribbean States; two jurists nominated jointly by the Dean of the Faculty of Law of the University of the West Indies, the Deans of the Faculties of Law of any of the Contracting Parties, and the Chairman of the Council of Legal Education; and two persons nominated jointly by the Bar or Law Associations of the Contracting Parties.
In turn, the President of the court, its chief justice, is selected by the contracting parties from a list of self-nominated applicants recommended by the Commission.
In short, the Commission, a body stacked with a close-knit cadre of like-minded members of the legal establishment, a class of people roundly feared, distrusted, and reviled by most Caribbean people based on bitter personal experience, has almost total control over the selection of CCJ members. There has rarely been a more blatant example of the old boys’ network in recent times.
Sir Ronald Saunders, one of the CCJ’s loudest cheerleaders, inadvertently accepts the grassroots negative evaluation of the extra-CCJ legal system as being made up of corruptible individuals and agencies yet denies that this could ever apply to the CCJ when he argues that:
“Retentionists in the 8 CARICOM countries, who argue for the retention of the Judicial Committee of the Privy Council [JCPC] as their final appellate court, irrationally equate the performance of local courts in their jurisdictions to the Caribbean Court of Justice (CCJ).
“They argue two things: the judges of the local courts are subject to direction of the governments that appoint them, and the judges are subject to influence from within their communities. Therefore, they say, the CCJ will be the same.”
How could it not be the same, given the lack of public consultation in the very formation of the CCJ, on the one hand, and in the selection of a Commission charged with appointing and removing the justices (with input from other bodies), on the other? And how can ordinary people have confidence in an unaccountable Commission in which, “The Contracting Parties undertake to make provision to ensure that the proceedings of the Commission shall not be enquired into in any Court?”
In sum, there are four grounds for those CARICOM people who are being hectored by Sir Ronald and others to abandon the appellate jurisdiction of the JCPC in Great Britain to be very cautious about doing so:
- the agreement to establish such a court was a closed and undemocratic political act by the heads of the CARICOM Contracting Parties with no public input, consultation, and/or ratification.
- The Commission that determines membership on the CCJ is composed largely of an old boys’ network of self-aggrandizing and mistrusted legal elites.
- Nomination to the CCJ is an arrogant and elitist rejection, by those who see themselves as more exalted than the rest of us, of democratic decision-making and accountability to the citizenry.
- The Commission’s deliberations and decisions are conducted in inexplicable secrecy.
To be sure, some of these features characterize judicial appointments around the world in places where they are rooted in hundreds of years of elitist jurisprudence. By contrast, since the CCJ has only been operational for 13 years, the former Caribbean colonies – like their 1789 American counterparts — could have easily chosen a more open, democratic, and accountable system of court governance and administration.
That they did not do so makes crystal clear that the disrespect the Caribbean masses have for their legal system is more than matched by the contempt that the juridical elite have for the masses.
By way of contrast, SCOTUS was deliberately embedded in a larger constitution that was democratically and publicly ratified between 1787 and 1790 by the elected legislatures of the former 13 British colonies.
The CCJ is no people’s court.
This is the fourth in a series of essays on Caribbean constitutional reform, with special reference to the Caribbean Court of Justice. The others are listed here.
The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected]
The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected].