EDITORIAL: Justice costs money

The arguments for and against the Caribbean Court of Justice (CCJ) fall along a number of lines: competence, integrity, independence, and patriotism, just to name a few.  One area that is rarely discussed, however, is cost.  Not the cost of an individual’s to access the court but rather, the funding of the CCJ.  So, today, we shall peer into the court’s funding and talk about the Caribbean Court of Justice Trust Fund.

First, a bit of background.  Borrowing from the 2016 Annual Report (the latest available on the CCJ website – caribbeancourtofjustice.org), “The Caribbean Court of Justice Trust Fund (“the Trust Fund”) was endowed with its initial capital in April 2005 with the mandate to provide the financial resources necessary to fund the Caribbean Court of Justice (“the Court”) and the Regional Judicial Legal Services Commission (“the Commission”) in perpetuity.”  Please take careful note of that because “in perpetuity” means forever.

The Trust Fund was established to address the concerns that the judges of the Court would be paid by governments which could possibly “exert decisive informal pressure on them to deliver judgments favourable to this or that government.”   In some very strange and telling wording on the CCJ website, it states, “In order to pre-empt this eventuality and fund the Caribbean Court of Justice in perpetuity, a Trust Fund of US$100 million has been established, so as to enable the expenditures of the Court to be financed by income from the Fund. In this way, the expenditures of the Court, including the remuneration of the judges, is not dependent on the disposition of governments.”  First, it is telling that the CCJ itself saw the situation as being an eventuality.  That appears to be a damning critique of our regional governments and the judges that sit and dispense justice.  Second, there appears to be no fallback plan in case the fund is depleted.  Forever, after all, is a very long time!

At this point, you are probably wondering how this grand plan of financial independence is going.  So, let’s have a look.  According to the 2016 Annual Report (made available on antiguaobserver.com for easy reference), the initial contribution to the Trust Fund was US$100,946,142.  At the end of 2016, it is now worth only US$82,323,416.  From its establishment in 2006 to the end of 2016, a short 10 or 11 years, it has lost 18 percent of its value.  At this rate, ‘forever’ seems more like 50 years!  

If we try to calculate the Trust Fund’s lifespan on past experience, it is actually less because the fund received additional contributions of US$13,121,518.  So, in fact, the funding so far has been US$114 million and at the end of 2016 it had been depleted to US$82 million.  In case anyone wants to quibble over numbers, that final number is after taking into consideration US$2.3 million “Due to Court re non-judicial staff pensions.” In any case, that represents almost one third of the value of the fund lost in the short period of time of its existence. 

Hang on though.  If you find that alarming, then you will not like to know the rest.  The Trust Fund also made a net gain of about US$33 million in that time but has had to pay out just over US$65 million in “Disbursements to Court & Commission.”  “Net Receipts from Court & Commission” stood at US$2,786,379 for the same period of time.  It does not take a business or financial whiz to figure out that, at this rate, the fund will not last “in perpetuity.”  If the fund’s performance does make a dramatic turnaround, the net value will continue to decline, and where does that leave us?

To put this all in some sort of perspective, let us look at another regional institution, the University of the West Indies (UWI).  The financing is completely different, but the underlying concept is the same.  In the final analysis, whether held in a Trust Fund or not, the entity is funded by the governments.  What happens when that Trust Fund runs out?  How is the funding administered and what happens to the cases from those countries that may find it difficult to come up with the funding for the CCJ?

In the case of UWI, we know the impact of governments not meeting their obligations to the institution; whether direct funding or through scholarships.  Not only does the institution suffer, but also the students.  How many times have students’ transcripts been withheld due to non-payment? Now juxtapose that with cases in the CCJ.  If a country is not able to meet the economic demands of the court, do the cases fall to the bottom of the pile?  Are they heard at all?  We have asked these questions to people who are responsible for the education ahead of the referendum and we keep getting the same unsatisfying reply.  Something along the lines of “Don’t worry, the court is fully funded by a Trust Fund … into perpetuity.”  The most recent report tells a different story.

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