Orin Gor­don

Be­fore wad­ing in­to the fall­out from the leaks of pri­vate, in­ter­nal cor­re­spon­dence with­in the Caribbean Court of Jus­tice (CCJ), it’s im­por­tant to un­der­stand what the CCJ is.

It’s the fi­nal court of ap­peal (supreme or apex court) in civ­il and crim­i­nal mat­ters for on­ly five Cari­com coun­tries—Bar­ba­dos, Be­lize, Do­mini­ca, Guyana and St Lu­cia. That is its Ap­pel­late Ju­ris­dic­tion, one of two. The oth­er is its Orig­i­nal Ju­ris­dic­tion, which, in its words, “ap­plies rules of in­ter­na­tion­al law in re­spect of the in­ter­pre­ta­tion and ap­pli­ca­tion of the Re­vised Treaty of Ch­aguara­mas.” De­ci­sions of the CCJ in both ju­ris­dic­tions are fi­nal.

Even though the court is in Port-of-Spain, it isn’t Trinidad and To­ba­go’s fi­nal court of ap­peal. That’s the Privy Coun­cil in Lon­don, part of the House of Lords, the un­elect­ed up­per cham­ber at West­min­ster. The Privy Coun­cil can con­sist of up to 12 judges, and three to five are nor­mal­ly em­pan­elled to hear cas­es from coun­tries for which it is their supreme court.

T&T’s ob­jec­tions to the re-elec­tion of Cari­com Sec­re­tary Gen­er­al Dr Car­la Bar­nett are be­ing heard un­der the CCJ’s orig­i­nal ju­ris­dic­tion. The more coun­tries sign on to the CCJ, the more its le­git­i­ma­cy in­creas­es. The leaks could have a dev­as­tat­ing im­pact on that. That’s how grave the cri­sis is.

The Re­gion­al Ju­di­cial and Le­gal Ser­vices Com­mis­sion (RJLSC) ap­points judges to the CCJ, over­sees fi­nan­cial and HR man­age­ment, and “(Cul­ti­vates) an en­vi­ron­ment con­ducive to the de­vel­op­ment of pro­fes­sion­al­ism, ex­cel­lent work ethics, man­age­r­i­al com­pe­tence, and job sat­is­fac­tion.”

It’s com­posed of le­gal ex­perts, aca­d­e­mics and civ­il so­ci­ety lead­ers from across the Caribbean. Its Vi­sion State­ment speaks of “the best prac­tices in sup­port of (the CCJ) dis­charg­ing a fair and ef­fi­cient sys­tem of jus­tice.” It doesn’t de­scribe it­self as an over­sight body, but it sounds like one.

Its po­si­tion is worth quot­ing at length: it “recog­nis­es the se­ri­ous­ness of these mat­ters and the im­por­tance of ad­dress­ing them in a man­ner that pro­tects pub­lic trust and con­fi­dence in the Court, and the broad­er ad­min­is­tra­tion of jus­tice through­out the Caribbean.”

“…the RJLSC be­lieves that these con­cerns are best ad­dressed through the es­tab­lished in­ter­nal gov­er­nance mech­a­nisms of the Court and the Com­mis­sion, and through a trans­par­ent and in­de­pen­dent re­view un­der­tak­en in the best in­ter­est of the Re­gion.”

The CCJ Pres­i­dent Win­ston An­der­son re­leased a lengthy state­ment de­fend­ing him­self against the ac­cu­sa­tions. It’s a mea­sure of how dam­ag­ing the leaks are to him and the court that he de­cid­ed that he need­ed to ad­dress them im­me­di­ate­ly – be­fore any in­ves­ti­ga­tion.

Un­der the head­ing Pan­el Com­po­si­tion (“Pan­el Fix­ing”), An­der­son de­nied set­ting up or chang­ing pan­els to en­gi­neer “pre­de­ter­mined out­comes”, and de­scribed it as “per­haps the most se­ri­ous wound.”

Un­der the head­ing In­flu­enc­ing Judg­ments, he de­nied in­ter­fer­ing in cas­es, not­ing the unan­i­mous de­ci­sion hand­ed down in a case ref­er­enced by one of the jus­tices in the leaks—the case of Guyanese op­po­si­tion leader Azrud­din Mo­hamed and his fa­ther Nazar Mo­hamed, in their wider le­gal bat­tle against ex­tra­di­tion to the US to face se­ri­ous crim­i­nal charges.

The ex­changes in the cas­es men­tioned, he said, were part of the nor­mal ro­bust back and forth be­tween judges, and no judge of the court is pre­vent­ed from ex­press­ing his/her ju­di­cial views.

I don’t have the space here to ful­ly present the Pres­i­dent’s re­but­tals. They’ve been post­ed in a me­dia re­lease on the CCJ’s Face­book page. You should go read it.

Ei­ther way, an in­de­pen­dent in­ves­ti­ga­tion is nec­es­sary. As a jour­nal­ist, I’m in­stinc­tive­ly in favour of pro­tect­ing iden­ti­ties, even if an in­ves­ti­gat­ing body may not be bound by the same code. How­ev­er, the me­dia and the pro­fes­sion­als de­liv­er­ing in­ves­tiga­tive over­sight have an oblig­a­tion to fair­ness. The leaks, as re­port­ed, were ef­fec­tive­ly free hits at An­der­son. We’ve now heard from him.

In his 4,000-word de­fence, this sen­tence stood out: “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!”

That reads like he thinks that the af­fair is or­ches­trat­ed. If that’s the case, the leaks may turn out to be an act of self-harm, rather than ex­or­cism. They dam­age the CCJ and hurt the case for ac­ces­sion by states out­side its ap­pel­late ju­ris­dic­tion. Ac­cu­sa­tions of mal­ad­min­is­tra­tion by its Pres­i­dent don’t on­ly hurt the CEO… they hurt the firm.