Stephen Vasciannie
IN THE context of the debate on the Caribbean Court of Justice (CCJ), there was a fair degree of commentary on the method of appointing judges. In the end, the treaty establishing the CCJ has taken the matter largely outside the sphere of partisan political control.
Thus, for the CCJ, judges are appointed by the Regional Judicial and Legal Services Commission, and a majority of the members of this commission owe no direct allegiance to the executive in the various countries that are party to the CCJ arrangements. In addition, some of those members of the commission who are directly linked to political arrangements - for example, Chief Justices - cannot fairly be considered agents of the executive. The commission therefore acts with independence.
This, then, is a triumph for civil society; and we know this to be true because in the original arrangements for the appointment of judges contemplated for CCJ judges, some governments preferred giving more power to the executive.
HART'S CRITICISM
One criticism that has been raised about the CCJ appointments process, however, is that the Regional Judicial and Legal Services Commission is required to have too many lawyers on the panel. This criticism has come, for instance, from no less an authority than Richard Hart, historian, Attorney-General of Bishop's Grenada, and one of the historic '4Hs'.
Hart's concern should be considered whenever the time is right to revise the terms of the CCJ Treaty. The treaty does, in fact, expect that there should be a concentration of lawyers on the commission, but it is not entirely clear that this is a bad thing. Lawyers, legal academics and judges are likely to have a strong sense of which persons are apt to make the best judges, and therefore their input must be important in the appointments process.
But, of course, this is not to suggest that the appointments process should be left exclusively to lawyers. On the contrary, because judges will be called upon to decide cases concerning the broad range of human experience, and to give binding pronouncements that carry significant social, economic and political implications, the selection process should include mechanisms to incorporate the views of persons from various sectors of society. Balance is important.
JAMAICAN MODEL
The current model for judicial appointments in Jamaica has recently been criticised on the basis that it does not allow direct applications to the Judicial Services Commission for appointment to the bench. This is a fair criticism. The Jamaican model should, I believe, come in line with the CCJ model, in which applications are allowed. Actually, the CCJ model requires applications, but I believe that the local Judicial Services Commission should be left with the option of inviting persons to serve on the bench.
As in many things pertaining to the law, the current Jamaican model is a codified variant of practices in Britain. In Britain the situation is undergoing review, but the traditional system leaves little scope for the type of broad transparency people tend to prefer nowadays.
For instance, for appointments to the House of Lords (in its judicial incarnation), and hence to the Judicial Committee of the Privy Council, the selection involves consultations largely among senior lawyers and judges, with the final decision resting with the British Prime Minister. This process is political (in the British, understated way), with the system placing confidence in the willingness of the executive to avoid blatant partisanship.
COLLISION COURSE
In the United States, the system is more openly political. For Supreme Court appointments, the President proposes, and the Senate disposes. The Senate is duty bound to "advise and consent" on these appointments and, as was evident in the hearings concerning Samuel Alito, members of the Senate Judiciary Committee are fiery in their partisanship over judicial appointments.
The partisanship in the Senate almost forces judicial nominees to hide their views on controversial questions. If your view on abortion is precise, you will be condemned by one side or another. If you speak with clarity on presidential power, you will be praised and condemned. And yet, you are being considered for a lifetime appointment, during which period you will hear thousands of cases having nothing to do with abortion or presidential power.
As it now works, the American way of selecting Supreme Court judges seems to be on a collision course with itself.
Stephen Vasciannie is a professor at the University of the West Indies and a consultant in the Attorney-General's chambers.
