The question remains, then, how should a court like the CCJ, serving a public as diverse as it does, take into consideration the diversity of its judicial candidates? Complicating this question even more is the fact that it is unlikely that the pool of candidates, itself, will reflect the full diversity of the population. So, what should we do and what can we do?
The judicial selection criteria contained within the Agreement Establishing The Caribbean Court Of Justice does not offer much assistance. These criteria focus on what we might consider to be merit.
Article 4.11 states:
In making appointments to the office of judge, regard shall be had to the following criteria: high moral character, intellectual and analytical ability, sound judgment, integrity, and understanding of people and society.
To be fair, the agreement does contemplate diversity, but only in the sense of intellectual diversity. It includes provisions requiring the inclusion of judges with expertise in international law and international trade law (Art. 4.1) and allowing for candidates that have substantial judicial experience (Art. 4.10a) or academic experience (Art. 4.10b) in either common or civil law systems. Additionally, the last six words of Article 4.11 do give some latitude to address the concept of diversity.
The CCJ judicial qualification criteria are not an aberration in this regard. The Statute Of The International Criminal Tribunal Of Rwanda similarly focuses on merit and intellectual expertise.
Article 12.1 of that statute requires that:
The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the chambers due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.
Diversity is not contemplated otherwise. The Updated Statute Of the International Criminal Tribunal For The Former Yugoslavia uses identical language, leaving diversity entirely out of the statutorily required characteristics.
It bears mentioning, however, that despite the fact that diversity is not listed in the selection criteria of the CCJ, the ICTR, the ICTY or other international tribunals, diversity does seem to be taken into consideration by those who are doing the selecting (in the case of the CCJ) or the electing (in the case of many other international courts).
While we cannot know the details of the discussion surrounding the appointment of the first panel of judges at the CCJ, we can see the result – a panel, of only seven judges but with differences including those of gender, colour, ethnicity, nationality, places of geographical origin, religion and background experience, Common Law and Civil Law.
This difference between what is on paper and what actually transpires during the selection process seems to be quite common when we look at other courts. In international courts like the ICJ, ICTY, and ICTR, where judges are selected through a nomination and election process, “traditions” and other “informal norms” often exist that determine the geographic representation in these bodies (see Corell 2011, 77; Chandrachud 2013, 495).
The ICJ, for instance, always has a judge from one of the permanent five members of the UN Security Council, but this is not a written rule (see Corell 2011, 77). Similarly, as other panelists might note, judicial appointments to the Supreme Court of Canada, the Federal Constitutional Court of Germany, the Supreme Court of India, and other courts around the world tend to follow informal norms and practices to reflect various definitions of diversity – geographic, religious, gender, racial, etcetera (Chandrachud 2013, 497-501). Even the House of Lords and Privy Council, now the UK Supreme Court, which have been rightly criticized for their lack of diversity by Lady Hale (2013) and others, have a tradition of striving for (though not always achieving) a certain level of geographic representation ( Scotland and Northern Ireland) (see Chandrachud 2013, 499).
I do not think, though, that these informal practices and conventions are quite enough to address the issue of diversity and public perception. Projecting a diverse and inclusive face –– one that reflects to some degree the population that is served –– should be a priority for every court. And I suggest that for the CCJ, a court that has been tasked with deepening regional integration, this is even more important and more urgent.
We take this charge seriously, and we have strived to employ a regional work force, to represent the diversity of the region in the official languages of the court, to sound like the region in the accents you hear on our phone system, to look like the region in the faces and flags you see on the website. I think it is time to make this same dedication to regional diversity explicit in our judicial selection process.
While a quota system can never be appropriate for the CCJ, given the sheer range of diversity in our region, I believe that a conscious and forthright statement of dedication to achieving diversity as part of achieving the best CCJ bench, would be an enormous step in the right direction. Of course one must vigorously maintain that the qualities of sound intellect, extensive learning in the law and good character cannot be minimised or sacrificed.
But diversity should not be a tie-breaker, as it is in the International Bar Association’s Human Rights Institute Resolution (2011), but a fundamental consideration in the selection of the Bench from the range of candidates who are up to the standards required of a judge of the relevant court. It should make the Bench as a composite, better than a mere aggregation of the individuals on it. It should not be portrayed as “diversity or merit” or even “diversity and merit”, but as “diversity AS a vital component of merit”. But the solution comes at a price and cannot be automatic or magical.
It is not up to the court or its selection process alone. The price may involve an element of public service. No one can be appointed to the CCJ Bench who does not apply, and it is well known in the Caribbean, that the levels of remuneration at the highest levels of the legal profession exceed that of the Bench.
Let us be honest and upfront about the role of diversity in the Caribbean region. I think it would do much to send a signal to the people of the region that while every religion, ethnicity, and nation cannot be represented simultaneously on the bench, we do pay attention to these things and they are taken into consideration openly and honestly in the development of Caribbean jurisprudence.