Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-25T05:12:58.714Z Has data issue: false hasContentIssue false
  • English
  • Français

PROMOTING JUDICIAL INDEPENDENCE IN THE INTERNATIONAL COURTS: LESSONS FROM THE CARIBBEAN*

Published online by Cambridge University Press:  14 July 2009

Kate Malleson
Kate Malleson
Affiliation:
Senior Lecturer, Queen Mary, University of London.
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 58 , Issue 3 , July 2009 , pp. 671 - 687
Copyright
Copyright © 2009 British Institute of International and Comparative Law

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See D Terris, C Romans and L Swigart, The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (Oxford University Press, Oxford, 2007).

2 See, for example, P Russell and D O'Brien (eds), Judicial Independence in the age of Democracy: Critical Perspectives from Around the World (University Press of Virginia, Charlottesville, 2001); C Guarnieri and P Pederzoli, The Power of Judges: A Comparative Study of Courts and Democracy (Oxford University Press, Oxford, 2002).

3 Russell (n 2) 8.

4 The work of Terris et al (n 1) above is the first rigorous empirical study of the international judiciary.

5 Interviews were carried out in Barbados and Trinidad and Tobago in 2007 and 2008.

6 See D Simmons CJ, ‘The Caribbean Court of Justice: A Unique Institution of Caribbean Creativity’ (2004–2005) 31 Commonwealth Law Bulletin 1 72–73.

7 For a fuller review see D Pollard, The Caribbean Court of Justice: Closing the Circle of Independence, (The Caribbean Law Publishing Company Ltd, Kingston, Jamaica, 2004) H Rawlins, The Caribbean Court of Justice: The History and Analysis of the Debate (CARICOM, Georgetown, 2000); S McDonald The Caribbean Court of Justice: Enhancing the Law of International Organizations (The Caribbean Law Publishing Company Ltd, Kingston, Jamaica, 2005).

8 See Pollard (n 7) above.

9 See Simmons (n 6) above 76–78.

10 ibid.

11 Most notably Pratt and Morgan v Attorney General of Jamaica (1993) 43 WIR 340.

12 Simmons (n 6) 80.

13 S Ramphal, Time for Action: The Report of the West Indian Commission, (University of West Indies Press, Jamaica, 1994).

14 The appointment of one judge from a civil law system (discussed below) was a recognition of the need to take account of the different legal systems of these two jurisdictions.

15 See McDonald (n 7) above.

16 See Simmons (n 6) above 78–81.

17 Lord Mustill's report concludes that ‘The whole subject of the Chief Magistrate's conduct is shrouded in mystery which we have been unable to dispel… the picture presented to this Tribunal almost defies belief… The air was full of rumour, innuendo and gossip, around and across deep political (and, we are forced to say, ethnic) divides.’ The Report of the Tribunal to His Excellency the President of the Republic of Trinidad and Tobago in the matter of an Enquiry under Section 137 of the Constitution of Trinidad and Tobago paras 5 and 97.

18 Pollard (n 7) xiii.

19 See Rawlins (n 7 ) 39–41.

20 Pollard (n 7) 38.

21 See Simmons (n 6) 87 and Rawlins (n 7) 42–43.

22 Details of the trust fund and the trustees can be found at: http://www.caribbeancourtofjustice.org/trustees/annual_report07/pg_2.pdf

23 The creation of the Trust Fund was cited by interviewees as one of the greatest strengths of the Court.

24 The RJLSC appoints all the judges except the President of the CCJ who is selected by the Heads of Government. Some interviewees suggested that this post too should be brought within the remit of the Commission to reduce the scope for the politicisation of future appointments.

25 K Malleson and P Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (Toronto University Press, Toronto, 2006).

26 Comment by Justice of the CCJ in interview. See also Antoine, R ‘Waiting to Exhale’ (2005) 29 2Nova Law Review 148–9Google Scholar.

27 See Terris et al (n 1) 24–25.

28 Pollard (n 7) 11.

29 See M Wood, ‘The Selection of Candidates for International Judicial Office: Recent Practice’ in Ndiaye and Wolrum (eds), Law of the Sea, Environment and Settlement of Disputes (Brill Publishing, Koniknlijke, 2007) 357–368. The effect of political influences in the selection of judges to the international courts is currently being examined in a research project being undertaken by the author and the Project for International Courts and Tribunals, University College London.

30 Article V(12).

31 Pollard (n 7) 11.

32 Full details of the membership of the RJLSC can be found at: http://www.caribbeancourtofjustice.org/about_rjlsc.html

33 K Malleson, ‘Creating a Judicial Appointments Commission: Which Model Works Best?’ (2004) 102–121 PL; K Malleson The Use of Judicial Appointments Commissions: A Review of the US and Canadian Models (1997) Lord Chancellor's Department Research Series No 6/97.

34 A strong degree of approval of the make-up of the membership of the RJLSC was expressed by almost all interviewees.

35 A number of interviewees proposed that this should be countered by increasing the proportion of representatives of civil society on the Commission.

36 Malleson, K, ‘Assessing the Performance of the South African Judicial Service Commission’ (1999) South African Law Journal, 116, part 1Google Scholar.

37 The prevailing view expressed by interviewees was that strong candidates were unlikely to be deterred from applying by the prospect of an interview provided the questions and process was handled professionally and appropriately.

38 See C Chope, Nomination of Candidates and Election of Judges to the European Court of Human Rights, Draft Report, AS/Jur (2008) 343, Committee on Legal Affairs and Human Rights, European Assembly, Strasbourg.

39 Agreement Establishing the Caribbean Court of Justice of 2001. Article IV(11).

40 For full details of the current judges see http://www.caribbeancourtofjustice.org/judges.html

41 The agreement stipulated the appointment of three candidates with expertise in international law. The appointment of only one such candidate, Justice Duke Pollard, led to the unsatisfactory situation that the judicial retirement age was extended from 70 to 75 when Justice Pollard reached retirement age in 2006 to allow him to continue sitting and avoid the court being left without an international lawyer.

42 Trinidad Cement Limited-TCL Guyana Incorporated v The Co-operative Republic of Guyana [2008] CCJ 1 (OJ) and Doreen Johnson v Caribbean Centre for Development Administration [2009] CCJ 3 (OJ). The former case involved an allegation by a cement company of a breach by Guyana of the provisions of Article 82 of the Treaty which oblige Guyana to establish and maintain a Common External Tariff on cement imported into that State from countries outside the Caribbean Community. The latter was an application by an employee of CARICAD for, inter alia, wrongful dismissal. The Court held that it did not have jurisdiction to hear the case.

43 PC Appeal no 41 of 2004.

44 See K Malleson, ‘Judicial Bias and Disqualification after Pinochet (No 2) (Spring 2000) Modern Law Review 63.

45 The Attorney General Superintendent of Prisons Chief Marshal v Jeffrey Joseph Lennox and Ricardo Boyce, CCJ Appeal No CV 2 of 2005.

46 In March 2008, the leader of the opposition in St Vincent and the Grenadines announced the withdrawal of his support for the Caribbean Court of Justice citing fears of politicization of the court: ‘I want to see further movement in relation to the issue of political involvement and what role the political directorate can play.’ http://www.bbc.co.uk/caribbean/news/story/2008/03/080317_newsbriefspm2.shtml