Tracy Robinson | Appointing our most senior judges and making new political practices

With the recent retirement of Justice C. Dennis Morrison OJ, CD, QC, as president of the Court of Appeal, another distinguished judge, Justice Patrick Brooks, whose judgments are reliably hailed as “impressive” and “full and careful”, has been appointed to succeed him.

I wish to acknowledge the singular contribution made by Justice Morrison as one of the Caribbean’s most respected and eminent jurists. He was one of the region’s best civil litigators before joining the Bench. He is one of the longest-serving and most beloved legal educators, and many of us owe some of who we are today, professionally, to his encouragement, guidance, compassion, and wonderful example.

Furthermore, his academic writings, stretching back to the 1970s, on reception of law, land hunger, affiliation proceedings, and the law of evidence, are now an important part of the Caribbean legal canon. Justice Morrison has been described by the Caribbean Court of Justice’s (CCJ) President, Justice Adrian Saunders, as the best law graduate produced by The University of the West Indies (UWI) in its 50 years, and with good reason.

TIME FOR CHANGE

Even a very welcomed appointment offers us a moment in Jamaica and the wider Caribbean to reflect on how we appoint our most senior judges.

Both the chief justice and president of the Court of Appeal in Jamaica are appointed by the governor general on the advice of the prime minister, who is required to consult the leader of the Opposition before offering his or her advice.

I wish to make three recommendations that are not unique to Jamaica and apply equally to The Bahamas, Belize and the Eastern Caribbean, where the most senior appointments are also made on the advice of prime ministers. Barbados has already made substantial reforms to its process and my hope is that so will Belize, as it appoints a new chief justice.

My proposals have the goal of considering the best available persons, transparently filtered based on their suitability, skills and integrity, and reducing politicisation. I am not arguing here that Caribbean prime ministers cannot give due regard to the relevant criteria in the appointment process. Instead, I am suggesting that we should seek to institutionalise safeguards to better guarantee this.

First, I propose that the positions of chief justice and president of the Court of Appeal, when available, be publicly advertised, clearly elaborating the criteria for appointment, to ensure equality of opportunity and that all qualified persons can apply.

My co-authors and I made this recommendation in our 2015 text, Fundamentals of Caribbean Constitutional Law, that where prime ministers have the final say in judicial appointments, “there is an irresistible case that all such judicial posts be duly advertised”. In fact, many less senior judicial positions are advertised in the region.

Second, I suggest an independent body be created by prime ministers and be tasked with reviewing the applications based on the criteria and presenting the prime minister with a shortlist, from which he or she makes his or her selection.

Third, I recommend that the process integrates consultations with the Bar and Bench.

EXECUTIVE-ONLY APPOINTMENT PROCESS IN THE COMMONWEALTH

The 2015 Compendium and Analysis of Best Practice in relation to the Appointment, Tenure and Removal of Judges under Commonwealth Principles reports that 22.9 per cent of Commonwealth states have ‘executive-only’ systems for appointing the chief justice, which means that the prime minister or president has the final say on who is appointed, and there is no constitutionally required involvement of a public body in selecting candidates.

There has been half a century of debate in the region about judicial appointments that lie ‘in the gift of the prime minister’. In Trinidad and Tobago, the Wooding Constitutional Commission recommended in 1974 a “substantial reduction of the area of patronage at the disposal of the prime minister”. Uniquely, its 1976 Republican constitution provides for the chief justice to be appointed by the president after consulting the prime minister and the leader of the Opposition, to give the prime minister some “influence”, though not “the final say”.

I was a member of the seven-person committee, established by the Law Association of Trinidad and Tobago, and chaired by Madame Justice Desiree Bernard, former chancellor of Guyana and former CCJ judge, to look at the method of judicial appointments in Trinidad and Tobago. In 2018, that committee recommended that the president develop a practice of advertising the vacant post of chief justice and/or the establishment of an advisory committee to shortlist candidates for her consideration.

NEW POLITICAL PRACTICES DEVELOPING IN THE COMMONWEALTH

Building on the 1998 Latimer Guidelines on judicial independence, the 2015 Commonwealth Compendium makes the case that ‘executive-only’ systems “require a combination of legal safeguards and settled political conventions in order to be a reliable and legitimate means of appointing judges”. The Commonwealth recommends that the process “should include at least transparency regarding the criteria for appointment and the procedures followed, a requirement of consultation with senior judges and others, and, ideally, the existence of an independent body to provide oversight and deal with complaints”.

In 2016, Canada’s Prime Minister Justin Trudeau introduced a new policy in the appointment of Supreme Court judges. It includes a comprehensive application form and specific assessment criteria. Applications are reviewed by an eight-member advisory board comprising eminent judges, lawyers and citizens, which provides a shortlist for the consideration of the prime minister.

Barbados, since 1974, has had the exceptional constitutional situation of the prime minister, in effect, directing all senior judicial appointments, including High Court and Court of Appeal judges. In 2019, by legislation, Barbados introduced a Judicial Appointments Committee that includes the chief justice, a former chief justice or justice of appeal, two other former judges, a member of civil society and a senior attorney. The recent appointment of Mr Patterson Cheltenham as Barbados’s chief justice using this procedure may well be a first in the independent states in the anglophone Caribbean.

DEVELOPING NEW CONSTITUTIONAL CONVENTIONS IN THE CARIBBEAN

Jamaica and the rest of the Caribbean need to engage in meaningful constitutional reform, but that does not preclude us also strengthening our political practices in relation to the existing constitutions. The late Professor Ralph Carnegie warned in 1985 that “we cannot do without a constitution, even if we can prove that it is theoretically impossible to produce a good one. But since it is indispensable, though imperfect, we have to rely on experience and reasonableness and restraint in its administration for its effective working”.

Developing new ‘conventions’ is one way of strengthening our “imperfect” constitutions. Our constitutional law includes, Dr Lloyd Barnett explains, “conventional usages which affect the machinery of government and relevant political relationships”. Conventions are ‘non-legal rules’ of the constitution that are respected and generally applied in practice, but are not enforceable in the courts.

Jamaica’s 1962 Constitution converted several Westminster conventions into constitutional rules, but we have been slow to develop our own. Professor Emeritus Albert Fiadjoe bemoaned that we have not seen much development, post-independence, of new conventions as part of the “organic growth’” of Caribbean constitutions. The development of new political practices into well-established conventions takes time, political maturity, and bipartisanship.

To be clear, I think it is open to a Caribbean prime minister, like Canada’s, to develop a new practice in which he or she sets up an advisory body that provides him or her with advice on the appointment of the chief justice or president of the Court of Appeal, provided he or she ultimately makes their own decision. I do not think this practice, which comports with our notions of limited government, requires either legislative or constitutional reform, though I expect this point will give rise to debate.

Make no mistake, constitutional reform is urgent in our region. But equally, we must do better with the constitutions we have through maturing political practices. Otherwise, we ‘down-grow’ our imperfect constitutions and ourselves as a polity.

Tracy Robinson is senior lecturer, Faculty of Law, The University of the West Indies, Mona.