I was born in the Caribbean and spent the first nineteen years of my life there. I practiced law in Ontario, Canada for twenty-nine years, and sat on the bench of the Superior Court of Justice of Ontario for sixteen years as a trial judge. Trial judges on that court are ex-officio members of the Court of Appeal.
There is a Divisional Court within the trial court, which has appellate jurisdiction in a wide variety of matters. I sat on the Divisional Court for a significant number of cases and shortly before my retirement I sat on a small number of cases in the Court of Appeal.
During the latter part of my judicial career I spent a fair amount of time in close working proximity with judges of the Court of Appeal. I say all this to convey the impression that I understand the nature of the legal and judicial process, and would like respectfully to share my views on the CCJ
I believe the following are some very important considerations to bear in mind for those countries that are reluctant to accept the jurisdiction of that court:
As the court of final appellate jurisdiction, its proceedings will be heard by at least three judges, likely five, seven or perhaps even nine judges.
Its function is to decide, on the basis of written records, whether trial judges or lower appellate judges made significant errors of law in their reasons for judgment that would warrant overturning of decisions or ordering new trials.
All judges are trained as lawyers, and therefore understand that their decisions will not be sustainable if they are arbitrary. In that regard, judgments must always be supported by reasons rendered after all the relevant evidence produced has been heard or read.
Appellate court judgments are read by law students, lawyers and other judges, both within and without the jurisdiction. Trial judges have enormous incentives to not get their judgments wrong in any case, especially those that are significant. Appellate Judges have even more incentive to “get it right”.
It is most unlikely that Caribbean lawyers and therefore judges are more dishonest than judges in other jurisdictions, and more likely at the appellate level to conspire among themselves to favour one party over another. In any event conspiracies between three or more judges are most unlikely.
Most serious criminal cases are heard by juries whose decisions are rarely overturned on appeal. The civil cases that appellate courts tend to take up (leave is required for a number of cases) are usually of the complicated variety where the courts consider it important to give guidance to the profession.
The judges of the CCJ will be from a variety of countries and a panel will likely be representative of such diversity.
The ideas of independence and a foreign court of final jurisdiction are mutually inconsistent. Like Supreme Courts of other major Commonwealth countries it is important that the Court develop its own body of jurisprudence that reflects the special, indeed sometimes the peculiar, conditions and traditions of the region.
It cannot be denied that the region has a long history of producing legal scholars of the highest order.
There just is not as much scope for dishonesty or stupidity in appellate judging as lay people seem to believe.
Retired Superior Court Judge
And former board member
Canadian Institute for the Administration of Justice.