When trust faces its test [Part I]

THE Caribbean Court of Justice (CCJ) is facing one of the most serious institutional controversies in its relatively young history.
Leaked internal emails, allegations concerning the conduct of its President, Justice Winston Anderson, questions about judicial panel composition and claims of possible interference in the preparation of judgments have created an uncomfortable moment for a court whose authority ultimately depends not on political power, but also on public confidence.
This is precisely why the controversy must be approached with intelligence, restraint and fairness.
There is a legitimate public interest in understanding what happened inside the CCJ. There is also an equally legitimate interest in protecting the independence, confidentiality and institutional integrity of the Court. These two principles are not contradictory but inseparable.
Justice Anderson’s August 14 statement deserves serious consideration because, rather than hiding behind the institution, he confronted the allegations one by one. He also acknowledged that, in at least one respect, he might have handled matters differently.
That is not the behaviour of someone refusing scrutiny. It is the response of a judicial leader attempting to place a highly charged controversy into its proper constitutional and institutional context.
The first issue, therefore, is not whether criticism of the CCJ should be allowed. It should. The real question is whether confidential judicial deliberations should be leaked, selectively interpreted and converted into political ammunition before the facts are independently established.
Justice Anderson was unequivocal on this point. He condemned the unauthorised disclosure of confidential correspondence and internal deliberations, warning that such disclosures damage judicial collegiality and public confidence in the third branch of government. His concern is hardly trivial.
Judges must be able to disagree privately. They must be able to challenge each other’s reasoning, test legal arguments, change their minds and propose alternative approaches without fearing that every sentence written in confidence will eventually appear in public as evidence of institutional warfare.
The fact that judges disagree is not evidence that justice has failed. It can be evidence that judges are doing their jobs.
Indeed, Justice Anderson explained that the deliberations in the Mohameds matter involved differing views about reasoning and the articulation of the judgment, but that all seven judges ultimately agreed on the disposition of the appeal. He described such robust exchanges as normal and healthy in a collegiate appellate court and I dare say that the distinction is particularly important to Guyana.
The CCJ’s decision in the Mohameds matter should not now be treated as illegitimate simply because internal judicial discussions have become the subject of controversy. The Court itself says there was complete unanimity among its seven judges as to the outcome.
A judgment must be evaluated on the law, evidence, reasoning and constitutional principles applied not on whether private emails contain disagreements over wording, strategy or legal analysis.
Those who disagree with a CCJ judgment have every right to criticise it but criticism is not the same as proving corruption, bias or judicial manipulation.
The most serious allegation is undoubtedly that panels were manipulated to achieve predetermined outcomes. Here again, Justice Anderson’s response was direct. He rejected the allegation as wholly untrue and explained that panel composition has historically been an administrative responsibility of the President.
The controversy appears to have centred heavily on D’Almada, where a judge was removed from an interlocutory panel after disagreement over judicial attire. But the president maintains that the decision had nothing to do with the judge’s views or the merits of the case. More significantly, he says that the judge was subsequently included in the Full Bench for the substantive hearing and that the interlocutory matter itself resulted in unanimous agreement among the five judges involved.
That explanation does not mean every administrative decision at the CCJ should escape scrutiny. It does mean, however, that the leap from a dispute over judicial attire to an allegation of “panel fixing” requires evidence and that is where responsible journalism and responsible politics matter.
The Caribbean cannot afford a culture in which leaked private correspondence becomes proof of wrongdoing merely because the contents are embarrassing, uncomfortable or politically useful.
The controversy has already prompted calls from regional bar associations for investigations into both the leak and the allegations contained in the correspondence. That is a sensible response. Investigation is preferable to rumour, insinuation and trial by media.
The future of the CCJ depends upon precisely this distinction.
The Court was created as an expression of Caribbean sovereignty and confidence in Caribbean jurisprudence. It was inaugurated in 2005 and operates in both an Original Jurisdiction and an Appellate Jurisdiction. Its Original Jurisdiction serves the CARICOM Single Market and Economy, while five states including Guyana currently use it as their final appellate court.