RUMBLE IN THE CCJ
Disagreements among the Judges of the CCJ, Guyana’s final appellate court, recently exploded in leaked emails in the Trinidad press. Dismay and consternation greeted the expressions of discord. After the publication of the statement of the President of the Court, Justice Winston Anderson, it has become clear that the information disclosed in the emails was limited and incomplete. Based on the facts set out by Justice Anderson, the sweeping allegations of wrongdoing against him are not justified. It may well be that the tone and manner of Justice Anderson’s engagement with his colleagues might have been too direct, perhaps even confrontational. He hinted as much himself. But the provocation caused by a Judge turning up in traditional garb at a court hearing, and insisting that he will do so in future, should not be underestimated. Robust discussions, if not attaining the level of intimidation, ought not to be the cause for complaint.
The allegations suggested in the leaked emails are: (i) directions by the President to Judges relating to dress code; (ii) the pressuring by the President of Judges in relation to cases, the recent Mohamed case being one example; (iii) fixing the panel of Judges for cases in some way. At first, I believed, without more information, that the issue about dress code is de minimis, the Mohamed case does not bear out any allegation with regard to pressure by the President because the decision was unanimous and it was the President’s job to fix the panel of Judges.
Justice Anderson, in his extensive response, after condemning the unauthorized disclosure of internal deliberations and confidential correspondence, has explained as follows: (i) He has consulted regularly with Judges, the last meeting being on 30 July; has established an Executive Strategic Planning and Advisory Committee, of which two Judges are members, which last met on 28 July; and a Monitoring and Evaluation Committee which met for two days on 20 and 21 July; (ii) The issue of dress code emerged when a Judge insisted on wearing national dress in matters being heard in Chambers which Justice Anderson felt to be unacceptable. Discussions with judges did not resolve the matter and he caused a draft Judicial Dress Code to be prepared for consideration by the Regional Justice and Legal Services Committee (RJLSC); (III) In relation to “panel fixing”, Justice Anderson said that the sole reason for altering the composition of the panel was because the Judge insisted on his right to wear national dress in court; (iv) After an extensive explanation, Justice Anderson said that judicial views were not suppressed and no Judge was directed to reach a particular conclusion; (v) As regards Guyana, Justice Anderson pointed out that two of his predecessors had publicly addressed the issue of acting appointments of Guyana’s two most senior judicial officers. It was in that context that he raised the issue with the Leader of the Opposition.
It has been reported in the local and regional press that the RJLSC has acknowledged allegations concerning the President and announced that a “transparent and independent review” will be undertaken into the matter. The powers of the RJLSC do not permit such a review. These powers are set out in Article V of the Agreement Creating the Caribbean Court of Justice.
They include the appointments of Judges, other than the President; makes appointments, and determines terms and conditions of service, of officials and employees; terminates appointments; exercises disciplinary control over Judges, other than the President, and over officials and employees; makes recommendations to the Heads as to the person to be appointed President and for the removal of the President from office; determines the terms and conditions and other benefits of the President and other Judges of the Court with the approval of the Heads of Government;
Nothing in the functions described above gives jurisdiction to the RJLSC to investigate the President of the Court, “review” his conduct, or “review” the issues arising from the leaked emails which concern the internal functioning of the court. Therefore, the matters raised by the leaked emails rest solely with the President of the CCJ. He has made his choice by publicly and fully confronting the allegations head on. If the RJLSC proceeds to review the matter, they have the leaked emails which, at best, gave a truncated account of the actual facts that led to the comments contained in the emails. With Justice Anderson’s statement, the RJLSC has a full account of his perspective of the facts. If there is to be a “review” by the RJLSC, notwithstanding the lack of jurisdiction, and the RJLSC “reviews” Justice’s Anderson’s conduct or his approach to resolving differences, it should certainly also “review” whether the CCJ has been brought into disrepute as a result of the unauthorized disclosure of the CCJ’s confidential business.
Justice Anderson’s private intervention relating to the confirmation of the appointment of the Chancellor and Chief Justice in Guyana can be understood in the context of the serious concerns by the CCJ, publicly expressed by his two predecessors, about the independence of the Guyana judiciary having regard to the failure to obtain such confirmation. Justice Anderson’s error was to underestimate the deep political schisms in Guyana which have bred an advanced form of suspicion and bitterness. Justice Anderson may have overestimated the goodwill he expected. Now he knows!
