The reports of serious disagreement among the judges of the Caribbean Court of Justice (CCJ) are troubling. They should concern everyone who values the court, judicial independence and the rule of law in the Caribbean. But concern should not become panic or translate into all-or-nothing thinking. Nor should allegations, however serious, become established facts merely through repetition. Still less should an internal dispute among judges become an excuse to diminish an institution which, over the past two decades, has made an important contribution to Caribbean jurisprudence and regional integration.
There is another danger.
In the heat generated by headlines about “dictatorship”, “panel fixing”, a “toxic environment” and attempts to influence judicial decisions, we may lose sight of an important distinction: the CCJ is bigger than any president, any individual judge and any disagreement among its members. The question now is not whether there is a problem, clearly, there appears to be one.
The question is: where do we go from here?
Let’s begin with some perspective. Judges are human. They have different personalities, philosophies and approaches to the law.
Apex courts bring together highly accomplished people accustomed to forming and defending independent judgments. Vigorous disagreement should hardly surprise us. Indeed, disagreement is built into appellate adjudication.
Courts sit in panels precisely because difficult questions may admit of different answers. Judges circulate draft judgments, debate propositions, criticise reasoning and attempt to persuade colleagues. There is nothing inherently sinister about that.
Anyone who imagines that judges of the Privy Council, the former House of Lords or the United States Supreme Court have always deliberated in an atmosphere of serene unanimity should revisit the history of those institutions.
Alan Paterson’s celebrated empirical study, The Law Lords, precisely examined the interactions and influences among Britain’s ultimate appellate judges and the process by which judgments emerged.
Collegiality does not mean the absence of disagreement. Unity is not uniformity. Having said that, I accept that there is an important line between persuasion and pressure; between judicial leadership and judicial control; between legitimate administration and interference with adjudication - and that line should never be crossed.
The Bangalore Principles of Judicial Conduct recognise this internal dimension of judicial independence. A judge must be independent not only of governments, litigants and outside interests - but also of judicial colleagues when making decisions entrusted to that judge.
Accordingly, allegations that judicial panels have been manipulated to affect outcomes, or that judges have been subjected to improper attempts to influence their decisions, cannot simply be brushed aside. They have to be addressed—but carefully, fairly and institutionally. One should never unreflectingly accept assertions or allegations; these are not findings. What the public presently has are reports of correspondence containing serious allegations and competing perspectives. But this is not the same thing as an adjudication of what occurred.
There may be explanations, context and material which are not presently in the public domain. The governing agreement itself gives the president significant responsibilities concerning the organisation of the court.
The court may sit in divisions as directed by the president, and the agreement contemplates rules regulating the selection of judges.
At the same time, the decision in a case belongs to the judges hearing it and is determined by their majority. The mere alteration or constitution of a panel therefore cannot, without more, establish “panel fixing”.
The critical questions would include why a particular panel was constituted or altered, what rules or established conventions applied, and whether any decision was motivated by an intention to influence the result. Those are questions requiring facts, not speculation.
Fairness requires that Justice Anderson be afforded precisely the same protection from prejudgment that we would expect the court itself to afford any person appearing before it.
Fairness must be linked to logic and respect. We need to make correct judgment. So, what happens, or should happen, now?
In my view, there are at least two dimensions to the present difficulty, and they should not be confused: one concerns whether anything occurred which requires formal institutional investigation; the other concerns the breakdown in working relationships which the reported correspondence appears to reveal. The second may require attention even if the first ultimately produces no finding of wrongdoing.
These judges must work together. They must deliberate together, disagree with one another and ultimately decide cases affecting governments, businesses and citizens throughout the Caribbean. That requires trust.
For that reason, I believe serious consideration should be given, at least initially, to confidential mediation or facilitated dialogue conducted by a person of exceptional standing and unquestioned independence. The mediator need not decide who was right or wrong.
Mediation is not an investigation. Its purpose would be to restore a functioning collegiate relationship and, if possible, enable the judges themselves to agree upon clear protocols concerning consultation, panel composition and substitution, circulation of draft judgments, judicial meetings, administrative decision-making and the relationship between presidential leadership and the independence of individual judges (simply put, repairing strained relationships, if such exists, and coming into a better way of being with each other).
Sometimes institutions need not merely rules but conversations. And judges, despite their professional vocation of resolving other people’s disputes, are no less human when the dispute is their own. If credible allegations remain which cannot appropriately be resolved in that fashion, then the formal mechanisms established by the CCJ Agreement must take their course.
The agreement created the Regional Judicial and Legal Services Commission (RJLSC) for an important reason. Its composition deliberately draws upon the judiciary, legal profession, public service and civil society. It appoints judges other than the president and exercises disciplinary control over them. The agreement also establishes a specific and rigorous process where the possible removal of the president for inability or misbehaviour arises. Those safeguards should be respected rather than improvised around.
There is a larger point which risks being lost. The CCJ represents one of the Caribbean’s most ambitious institutional achievements. It was carefully conceived and constructed - in fact, many jurists around the world hail the CCJ as a model or blueprint for other courts. It’s important to remember what we built.
The architects of the CCJ understood the anxiety that would accompany the establishment of a Caribbean final court. That is why unusual precautions were taken to insulate it from political influence.
Judges other than the president are selected through the RJLSC rather than directly by governments. The court was also given an unusual financial structure intended to protect it from annual dependence upon political favour.
These arrangements were not accidental. They reflected a determination that Caribbean people were capable of creating a final court enjoying both independence and excellence. And the jurisprudential record matters; consider, for example:
Myrie v Barbados, which transformed the Caricom right of entry from an aspiration into an enforceable right Maya Leaders Alliance v Attorney General of Belize, recognising Maya customary land tenure and protecting constitutional property rights
Nervais and Severin v The Queen and McEwan v Attorney General of Guyana, in which the court confronted the continuing constitutional consequences of colonial-era laws
Cara Investments Limited v Christopher Ram and Bank of Nova Scotia, clarifying precise legal parameters defining when commercial tender bids establish preliminary contractual obligations
Beth Clifford and Beltway v LCW Investments upholding the principle of a company’s separate legal personality, and when courts can and cannot pierce the corporate veil.
Whether one agrees with every decision is beside the point. No serious observer can fairly say that the CCJ has failed to develop a distinctive and sophisticated Caribbean jurisprudence. Indeed, only recently at the Law Association’s Biennial Conference, distinguished panellists were extolling the quality of that jurisprudence and the exceptional calibre of the judges who comprise the court.
Nothing revealed in an exchange of emails suddenly makes those judgments less thoughtful or those judges less accomplished. In the event, we should not take one event and use it to generalise about other things; let’s not turn this into a referendum on the CCJ.
There will inevitably be those who seize upon this controversy as evidence that Caribbean countries should retain the Privy Council. That would be unfortunate. It also applies a standard to the CCJ that we would never sensibly apply to any other human institution.
The Privy Council is not composed of judicial automatons. Neither is the United States Supreme Court. Neither was the Judicial Committee of the House of Lords. Judges disagree. Personalities clash. Chief justices and court presidents must reconcile judicial independence with the administrative responsibility of leading courts populated by fiercely independent minds. The proper comparison between final courts cannot therefore be between a supposedly imperfect Caribbean court and an imaginary flawless foreign tribunal. The relevant questions are whether the court is institutionally independent, whether its judges are of the necessary quality, whether its jurisprudence commands intellectual respect, and whether its governance arrangements are capable of identifying and correcting problems when they arise.
On those questions, the CCJ has much of which the Caribbean can be proud. There may even be something constructive which can emerge from this unhappy episode. For twenty years we have debated the CCJ largely through the narrow prism of “CCJ versus Privy Council.” Perhaps it is time for a more mature conversation; perhaps this is not necessarily a crisis, but an opportunity to shape the future. An opportunity to ask serious and important questions: What does judicial independence really mean? How should an apex court select its panels? What authority should its president possess? How should disagreements among judges be managed? How should an institution preserve collegiality without suppressing dissent? How do we reconcile judicial independence with judicial accountability?
These are not uniquely Caribbean questions - they are questions confronting judiciaries everywhere. Perhaps this controversy provides an opportunity for Caribbean citizens to understand their court better and, equally, for the court to listen to the concerns now being expressed about it. Public confidence cannot be demanded. It must continually be earned. But transparency does not require every judicial disagreement to be conducted in public. Judicial deliberation necessarily requires confidentiality. What the public is entitled to know is that credible concerns affecting judicial independence are taken seriously and that appropriate institutional mechanisms exist to address them.
The CCJ itself has recognised that independence and accountability travel together. That, I believe, is the correct approach. So, let’s steady the ship. This is a moment for calm heads. There should be no rush to condemn Justice Anderson. Equally, the concerns reportedly expressed by five distinguished judges cannot responsibly be dismissed. Both propositions can be true at the same time. The judges should be given the opportunity, preferably with appropriate independent assistance, to restore their working relationships. Any allegations requiring formal investigation should be addressed through fair and established institutional procedures. And if weaknesses in the court’s governance arrangements have been exposed, they should be corrected. That is what mature institutions do; they do not pretend that difficulties never arise; they confront them; they learn from them; and they become stronger. The CCJ belongs neither to its president nor to its judges. It belongs, in a much larger sense, to the people of the Caribbean, whose rights it exists to protect and whose developing legal civilisation it represents. Twenty-one years after its inauguration, the court has earned a substantial body of jurisprudence and institutional credibility. One period of internal turbulence should not cause us to abandon that achievement. Rather, it should cause us to protect it. The waters may presently be troubled. The answer is not to sink the ship, but to steady it.
