The recent appointment of Nigerian-Canadian judge Chile Eboe-Osuji to the Caribbean Court of Justice (CCJ) highlights the need for reform in Jamaica’s judicial appointment process. Unlike Jamaica’s politically influenced system, the CCJ's appointments are transparent and competitive, overseen by the independent Regional Judicial and Legal Services Commission. Jamaica’s process, particularly for appointing the chief justice and president of the Court of Appeal, is heavily influenced by the prime minister. 

How to choose judges

Jamaica Gleaner/17 Apr 2025

THIS WEEK’S swearing-in of the Nigerian-canadian, Chile Eboe-osuji, as a judge of the Caribbean Court of Appeal (CCJ) flags another issue of constitutional reform, which must be on Jamaica’s agenda when the process restarts after the next elections: how judges are appointed.

The process must become more competitive and transparent, with less room for partisan political interference, as is now possible, especially with respect to the appointment of the chief justice and the president of the court of appeal.

In the meantime, Jamaica should consider ways to get around this conundrum, without doing violence to, or undermining the integrity of, the island’s constitution.

Justice Eboe-osuji, 62, is a former judge and president of the International Criminal Court (ICC). He has also served as a legal adviser to the United Nations High Commissioner for Human Rights (UNHCR) and practised law in Canada and Nigeria.

But his elevation to the CCJ wasn’t automatic. Nor was it via a shadowy network. The job was advertised. He was selected by the Regional Judicial and Legal Services Commission (RJLSC) from among 26 applicants.

The members of the RJLSC comprise:

• the president of the CCJ (chairman);

• two persons nominated jointly by the Organisation of the Commonwealth Caribbean Bar Association (OCCBA) and the Organisation of Eastern Caribbean States (OECS) Bar Association;

• one chairman of the Judicial Services Commission of a contracting party to the CCJ, selected in rotation in the English alphabetical order for a period of three years;

• the chairman of a Public Service Commission of a contracting party, selected in rotation in the reverse English alphabetical order for a period of three years;

• two persons from civil society nominated jointly by the secretary general of the Caribbean Community (CARICOM) and the director general of the Organization of East Caribbean States (OECS) for a period of three years following consultations with regional non-governmental organisations;

• two distinguished jurists nominated jointly by the dean of the Faculty of Law of The University of the West Indies, the deans of the faculties of law of any of the contracting parties and the chairman of the Council of Legal Education; and

• two persons nominated jointly by the Bar or law associations of the contracting parties.

So, not only is the process for appointing judges competitive, but those who make the decision enjoy significant insulation. Only with respect to the chief justice does the recommendation of the RJLSC go to CARICOM’S heads of government.

Under Jamaica’s constitutional arrangements, the chief justice and the president of the Court of Appeal are appointed by the governor general on the advice of the prime minister, after consultation with the leader of the Opposition. The bottom line: the decision is the PM’S.

There has been at least one instance of a candidate being parachuted into one of these positions, as well as the attempt in 2018, happily quickly abandoned, to place the current chief justice on probation. The fact that these misguided approaches ended with appointees performing with integrity and skill isn’t of sufficient comfort.

Other, lower-tier, judges are appointed by the governor general on the advice of the island’s Judicial Services Commission (JSC), whose members have largely behaved with rectitude.

BROAD-BASED JUDICIAL ADVISORY COMMITTEES

Nonetheless, apart from the chief justice and the president of the Court of Appeal, who automatically sit on the commission, it is fundamentally the prime minister who chooses the other four members of the JSC. One of them, an ex officio member, is the chairman of the Public Services Commission, which the PM also selects.

The fact that the system has, thus far, worked reasonably well, and that, once appointed, judges have upheld their mission and adhered to the principle of separation of powers, doesn’t mean that the judicial selection framework shouldn’t be provided greater insulation. A model like the CCJ’S, or something akin thereto, might be considered.

While the constitutional reform process is in train, Jamaica, in the interim, should explore the feasibility of the Canadian approach to judicial appointments.

Canada’s constitutional mechanism for appointing federal judges is not, on its face, far dissimilar to Jamaica’s. However, to escape the perception of a politicised process, the Canadians resorted to the use of broad-based judicial advisory committees, which recruit and interview candidates for advertised judgeships, including for its top court, the Supreme Court.

These committees provide the minister/prime minister a shortlist of candidates for judgeships, from which the selections are made. The process is transparent. Information and reports on the work of the committees are easily accessible.

There will be questions, of course, of whether such an arrangement could be fused onto or work in tandem with the Judicial Services Commission, given the JSC’S position as a creature of the constitution. Creative minds, if they wish, will always find ways around obstacles.

For a start, as a concession to transparency, the JSC should begin to widely advertise vacancies in the judiciary. It might even post reports on its selections and the reasons for its decision. Nothing in the constitution says it can’t.

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