Bdos: CCJ must be unswayed by every wind and doctrine

...I observed that legal, political and philosophical factors would be important in the selection of the judges. Whereas there was no difficulty in the acceptance of legal factors, a few readers had difficulty with ‘political’ and ‘philosophical’ factors.

By ‘political’ factors, I did not intend the narrow and some times narrow-minded issues which are the warp and woof of Caribbean debate, I meant, for example the wisdom which will ensure that there will be an appropriate geographical spread. Hence it is quite unlikely that the initial Judicial Twelve will omit a Jamaican and an OECS national, or that there will be six Barbadians or eight non-nationals of the Caricom States, whatever the individual qualification or competence. Again, there is bound to be the statutory woman or two.

Ince regards affirmative action as a proper political determinant -- it is, in fact, simultaneously political and philosophical -- in the final selection of justices. However, a judiciary derived by such a measure would not be likely to constitute the best and brightest legal minds in the Caribbean. Selection by merit is a far better alternative that would serve the Caribbean; for, geographical representation does not guarantee equality of legal acuity. Staffing the CCJ with men who look like the Caribbean subordinates knowledge, understanding, and wisdom in application of the law to a standard whose sole objective is to pander to the vanity of nationals from the different islands. If the CCJ is to be truly representative of Caribbean unity, then it should not matter if all the judges were from one island as long as the matters before the court were fairly and properly adjudicated according to what the law allows.

Ince continues:

By ‘philosophical’ I was referring to the thinking, which incorporates the following observation of Cardozo, “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. In this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether [he or she] be litigant or judge.”

It is incumbent on those who are selecting the judges that they be aware of their own philosophies, individually and collectively, and that they seek to ascertain the philosophies of the candidates by whatever means possible to ensure that the Caribbean acquires the best and balanced judiciary. This is all the more necessary because this Court will not have immediately above it a single parliamentary assembly to reverse the decision of the Court by legislation at short notice. It appears to me that until such time that we have a Parliament that binds us all in the Caribbean, this is bound to be problematic. If this is not so, then the public ought to be given the assurance early.

Ironically, Ince contradicts himself here for he has earlier subordinated judicial philosophy to the base social philosophy of proportionate representation rooted in affirmative action. One would imagine that the judicial philosophy of individuals who may assume the bench on the CCJ would be of primary concern to Caribbean peoples. After all, how liberally or how conservatively will the justices interpret the law? What is their view of the law and its relation to political decision-making? Can Caribbean countries expect an activist judiciary that will arrogate to itself that which is the proper role and function of the various parliaments; or, will the justices be strict constructionists who are content to interpret the law rather than make it? On what basis will the justices decide the cases that are before them -- the law or on their likes, dislikes, predilections, and prejudices? These are questions that must be answered, and they might well be brushed aside in the quest to have a judiciary that is proportionately representative.

Ince's analysis in this section reveals a tremendous flaw in the process of establishing a CCJ, one of which he seems to be blissfully unaware. What is apparent is the absurdity of having a Caribbean Court of Justice in the absence of a unified Caribbean community with a constitution that is accepted as the law of the land for the entire region. For, absent a regional parliament, the different countries' parliaments may be confronted with judicial holdings that may not be consonant with their constitutions. If, because of different national imperatives, what is legal in TT is illegal in St. Kitts, on what basis, then, may the CCJ adjudicate a matter that would impact both TT and St. Kitts? It does seem, therefore, that Caricom has the cart before the horse; for the primary imperative would be to develop a Caricom constitution having teeth and replacing each country's constitution.

Again, Ince's argument here contradicts his position; for he appears to prize proportional representation above judicial philsophy.

These developments in the Caribbean come at a time when commentators in the United Kingdom are worried that the Courts are pushing that society in the direction that they want the UK public to go. In fact, the language is strong as critics of the developments, which are not unlike ours, as regional entities supercede national ones, howl that the ‘dictatorship’ of the judges is on the way. One commentator, Melanie Phillips, says of the situation in the United Kingdom, “The House of Commons, the main brake against the executive and where power and authority should principally reside, is now weakened. Not only is it contemptuously sidelined by the prime minister. Its powers have been dispersed to devolved bodies, to Europe and above all to the Courts.

The result is a transfer of power from elected representatives to unelected judges with consequences that have yet to be recognised.... Decisions properly made by parliament will be taken instead or overturned by a judiciary which is unaccountable to the people. This will be a sea change; but it will also make transparent for the first time that the judiciary exercises over our attitudes and behaviour, an influence as profound as it is covert.”

Cynically, she declares that the judges maintain that their decisions merely interpret the will of Parliament and respond to cultural change that has already occurred. She considers this deeply disingenuous and concludes, “Law both reflects and shapes society’s attitudes and behaviour. The judges have huge influence; they don’t follow: they lead.”

I venture to say that while the establishment of the Caribbean Court of Justice represents in some ways the real construction of Caribbean Justice, it places into the hands of faceless judges who will be accountable to virtually no one but themselves, tremendous power over our lives and customs, -our total culture We shall not be able to afford to remain silent, respectful and intimidated while the Emperor parades without clothes.

All Ince has to do is look northward to see the impact of an activist judiciary on a nation. Such a transfer of power has recognizable consequences which include unresponsiveness to the concerns of the populace, a diminution of the importance of the voting booth with a resulting decline in democracy. The ultimate consequence is a police state in which judges legislate from the bench, and the state is hostage to the whim and fancy of the judiciary.

Ince's conclusion reveals why the establishment of the CCJ outside of a strong regional parliament, having a regional constitution that is the law in each island, is such a poor idea. There must be a system of checks and balances between the three branches of governance lest a dictatorship result. If the political and legal structure of Caricom is strengthened to become the regional government, then the judiciary is left with the clear role of interpreting a Caribbean constitution rather than determining the "will of Parliament" or responding to "cultural change." For, either of the two latter are subject to the whims and fancies of individuals and would make for poor adjudication of cases. The question which judges must always answer is "what does the law allow?" The legal response to such a question requires a legal framework rather than the fluctuations of politcs and social mores.