Editorial | CCJ: evening the keel

Justice Winston Anderson has, at least in the short term, effectively defanged fellow judges of the Caribbean Court of Justice (CCJ), who were scathing about his leadership of the court.

By ruling that, going forward, all sittings of the court will be en banc, Justice Anderson, the court’s president, removed any basis for the most devastating of the accusations against him: that he sought to set judges’ panels for predetermined outcomes in cases.

His undertaking to consult with the leaders of other regional courts on a dress code for CCJ justices will also likely ease, though not fully eliminate, concerns among his colleagues that he sought to unilaterally impose his own preferences on them.

While the dissatisfaction that rattled the CCJ did not fundamentally question the quality of its jurisprudence, it is obvious that there is work to be done to recapture any public confidence that has drained from the court.

But it is not only the CCJ’s external image that will need burnishing. Internal relationships will have to be rebuilt, not to create a frat society among the justices, but to ensure a reasonable collegial working environment that stimulates and supports intellectual rigour.

The initial complaints, and the tone of Justice Anderson’s rebuttal statement on Friday, especially with respect to the panel-fixing allegation, clearly indicate deep personal hurts. As first among equals, Justice Anderson has the primary obligation for a reset. This, however, does not mean that the Regional Judicial and Legal Services Commission (RJLSC), which has regulatory oversight for the court, is relieved of its obligation to support the efforts to recalibrate and correct, including, where necessary, taking firm disciplinary action.

DISCIPLINARY FRONT

On the disciplinary front, the most critical question is who leaked sensitive emails that circulated among the court’s seven judges, in which the accusations were made against Justice Anderson. If it were a justice of the court, that would be a serious breach of confidence and of the CCJ’s code of judicial conduct, which would put that judge’s place on the bench in serious jeopardy.

A leak by other staff would potentially also suggest charges arising from breaches of the cybersecurity laws of Trinidad and Tobago, where the CCJ is headquartered. In any event, the CCJ has to undertake a full audit of the security of its information technology systems.

The CCJ is a dual court. In its original jurisdiction, it is the arbiter of the Revised Treaty of Chaguaramas (RTC) under which 15 regional countries established the Caribbean Community (CARICOM), a single market and functional cooperation pact. Separately, it is the final court in criminal and civil matters for five regional countries: Barbados, Belize, Dominica, Guyana and St Lucia.

There are debates in other CARICOM member states, including Jamaica, on whether they should join the CCJ as their apex court, a political factor that has impacted public perception of the quarrel between the judges.

It started with Justice Anderson attempting to push through a codification of a dress code for CCJ judges after a Nigeria-born judge, Chile Eboe-Osuji, apparently turned up at non-bench sittings in traditional dress.

Concerns about Justice Anderson’s approach to the matter soon escalated to accusations of dictatorship and a claim by Justice Eboe-Osuji that the real reason he removed him from a panel was not dress, but because the president was “itching to reverse or chisel down” a decision by the court which Justice Anderson felt was wrongly decided.

ESCALATED

This soon escalated into complaints about Justice Anderson’s management of the court, including accusations that he attempted to stifle judicial independence, and a claim by Eboe-Osuji, who had earlier accused Justice Anderson of “dictatorship” in the dress code matter, that he was removed from a panel for a case because the president was “itching to reverse or chisel down the decision that all seven judges of the CCJ rendered in TCL vs Guyana in 2009, when you were not yet at the court”.

Patrick Jamadar, a Trinidadian member of the court, in an email, also railed against Anderson’s management of the court, citing his experience at a judges’ conference where he interpreted the president’s attitude in the debate “as an attempt to influence the opinions of colleagues that differed from yours in an authoritative manner”.

Maybe Justice Anderson has authoritarian tendencies. Nonetheless, it is difficult for this newspaper to appreciate how judges with security of tenure, on a court that is among the most insulated in the world, could be intimidated by its president. As Justice Anderson said in his statement, “no judge ... should be restrained from expressing his or her judicial views or from deciding any matter according to his or her independent assessment of the law and the evidence”.

The most telling part of Justice Anderson’s response to the criticism, which points to the need for the rebuilding of trust, is his characterisation of the accusation of panel-fixing.

He said: “The inferential leap required to elevate the issue of bench attire to an allegation of panel fixing is irresponsible, intellectually dishonest, injudicious and quite simply, malevolent!”

All judges hearing all matters is possibly feasible for now. It could be difficult if more countries join its civil and appellate jurisdiction and there are more cases to be heard.

The controversy has given ammunition to opponents of the court. The fix must begin now.