Keynote Address∗
by
THE RIGHT HONOURABLE SIR DENNIS BYRON PRESIDENT CARIBBEAN COURT OF JUSTICE
The Jamaican Bar Association–The Profession, Business & Ethics of Law Half Moon Hotel, Montego Bay, Jamaica Saturday, November 18, 2017
∗
This Paper was presented at the Jamaican Bar Association Nov 16th -19th 2017 Annual Weekend Conference on the Theme: Profession, Business & Ethics of Law at the Half Moon Hotel & Villas, Rose hall, Montego Bay, St. James, Jamaica
Keynote Address
The Rt. Hon. Sir Dennis Byron
Introduction In the Caribbean region, we are fortunate to have a tradition of Law and Order, but increasing levels of crime are a global phenomenon from which we are not immune. Throughout the Caribbean region the administration of justice has not received an adequate share of the public purse, to enable it to function as an efficient institution with the management tools of the 21st Century. It has been the view that this reflects the perception, that investment in Justice Administration is not a vote-catching activity. In a democracy the popular will influences spending priorities from the public purse. Democratic Governments pursue policies that are approved by the electorate. This means that the voting public will influence Government spending. I think that we are at a stage in our development when our people must be persuaded of the importance of the administration of justice to the extent that their concern will make it a priority of the Government. This thought plays into the section on strategic planning and publishing performance driven statistics to ensure that the public is aware of the essential issues and can lend its voice in support of improved funding. Every aspect of our existence is affected by the quality of the performance of the justice sector in our community.
An independent and effective judiciary is fundamental to economic development and social stability. Delay is a major threat to judicial independence and to economic development and social stability and must be stamped out by the judiciary.
Social and Economic Benefits The benefits from an efficient judicial system will include the following characteristics, which impact on our economic and social existence:
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The deterrence of wrongful conduct and protection of individual and public safety and property.
The facilitation of voluntary exchanges and promotion of social and economic development: and the framework for trade where rights and responsibilities are clear, predictable and enforceable at reasonable cost and in a timely fashion.
The resolution of private disputes.
The redress of abuses of power and provision of protection from arbitrary actions by the State, and other powerful organizations and individuals.
Upholding socially accepted standards of fairness and morality.
Rendering service to all without distinctions based on ethnicity, race, gender or socio-economic status.
It has become almost axiomatic that good governance, particularly the establishment of an appropriate legal and regulatory framework, and the development of competent and honest civil service and judicial organizations, are important preconditions for sustainable social and economic development. The World Bank in its Policy Document “Challenges of Capacity Development: Towards Sustainable Reforms of Caribbean Justice Sectors” supported this view. “Links between justice and development is now well articulated in development literature. Effective administration of Justice fosters growth and development by protecting property rights and widening the range of transactions and investments that economic agents are willing and able to undertake. If people can expect that the justice sector will resolve disputes in a neutral, quick and inexpensive manner, investments and business transactions are less risky and less costly. Consistent enforcement of understandable laws 2|Page
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helps provide a stable environment where the long-term consequences of economic decisions can be reasonably predicted and assessed, thereby achieving a level playing field by improving access to justice for all. An effective and efficient judicial system has the added benefit of making the legal system affordable and accessible for relatively small-sized enterprises and less-privileged citizens, thereby achieving poverty and equity objectives. Moreover, impunity for human rights violations are indicative of a lack of respect for the rule of law in a country. 1”
The Meaning and Scope of Judicial Independence The Charter of the UN and the Universal Declaration of Human Rights attested to the fundamental importance of the principles of equality before the law, of the presumption of innocence, and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. I would think that the citizens of any country would be content if they were confident that these principles were reflected in their justice system. The concept of judicial independence is a universally accepted principle 2 that has been affirmed in countless international and regional instruments. Its key features have been enumerated in such instruments as the International Bar Association’s Minimum Standards of Judicial Independence (1982) 3, the United Nations Draft Principles on the Independence of the Judiciary (1981) 4, its Basic Principles on the Independence of the Judiciary (1985) 5 and its “Basic Principles” and draft Universal Declaration (1989) and the Beijing Statement of
1 See: Challenges of Capacity Development: Towards Sustainable Reforms of Caribbean Justice Sectors - Volume I: Policy Document. IDB/CGCED, May 2000; 2 UNCHR “Report of the Special Rapporteur on the Independence of Judges and lawyers, Leandro Despouy” (2009) UN Doc A/HRC/11/41, at para. 14. 3 See: https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx#Standards, Principles and Ethics 4 See: Article 10 The Universal Declaration of Human Rights (1948) http://www.un.org/en/universal-declaration-human-rights/ 5 The United Nations via General Assembly resolution 40/146, 1985 adopted the Basic Principles on the Independence of the Judiciary which called upon governments to respect the Principles and take them into account within the framework of their national legislation and practice. See:http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx
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Principles of the Independence of the Judiciary –last revision 1997 of the Chief Justices of Asia and the Pacific region and many other instruments. Draft Principles on the Independence (Siracusa Principles), prepared by a Committee of Experts Convened by the International Association of Penal Law, the International Commission of Jurists and the Centre for the Independence of Judges and Lawyers, 1981. Additionally, Article XVII (2) of the CARICOM Charter for Civil Society of the Caribbean Community prescribes: “The States recognise and affirm that the rule of law, the effective administration of justice and the maintenance of the independence and impartiality of the judiciary are essential to good governance.� Finally, the Commonwealth Caribbean constitutions all are premised on the concept and some expressly state it. The universality of their acceptance attests to their validity. The international norms derived from the common features of these instruments imposes on states the responsibility to ensure that the concept of judicial independence is enshrined in the constitution and basic laws of each country 6. They also impose on Judges, personal responsibilities to maintain high ethical standards and to promote their continuing professional training. They identify as key objects and functions of the judiciary the following standards for judicial independence 1. To ensure that all persons are able to live securely under the Rule of Law 2. To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and 3. To administer the law impartially among persons and between persons and the State.
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4. To decide cases impartially without improper influences, direct or indirect from any source. 5. To have jurisdiction over all issues of a judicial nature, including whether an issue is within its competence. 6. That there shall be no interference of or revision of judicial decisions –except in cases of commutation of sentence by the competent authorities. 7. That everyone shall have the right to be tried by the ordinary courts using established legal procedures – special tribunals are not to replace the ordinary courts 8. In order to achieve the attitude of impartiality and the ability and determination to enforce the Rule of Law, the selection process which leads to judicial appointment should as far as possible be calculated to supply individuals of suitable calibre. In order to minimize improper considerations, the influence of the executive in the selection process should be kept to a minimum, and in the interests of public confidence in the impartiality of appointees, the selection process should, as far as possible be open and formal. 9. That there should be security of tenure. Fear of losing an appointment may subconsciously affect the ability of the judge to be impartial. 10 That a judge should be subject to removal from office but only for incapacity, conviction of a crime, or conduct which makes the judge unfit to be a judge in regulated procedures consistent with the rules of natural justice and publication of the decision. 11 That remuneration should be protected by law and be commensurate with the office of a judge in order to attract good people to judicial service, to minimize the danger of litigants exercising financial influence over the decision-making process and to help to maintain the status of the judiciary as an institution.
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12 That the State must provide the judiciary with adequate resources to carry out the judicial function.
These standards should not be considered onerous. They should be embraced and enthusiastically applied. The Secretary General of the International Commission of Jurists in these words has expressed it: “Far from being a luxury for a poor State, a legal structure which is quantitatively and qualitatively sufficient to carry out the services expected of it must be considered one of the necessary components of a society, and a precondition for its progress. 7�
In keeping with international standards, an independent judiciary is based on institutional arrangements and character of the judges. In keeping with international standards, an independent judiciary is based on institutional arrangements and the character of the judges. The judge must have the utmost integrity and competence and be efficient and effective. The institutional arrangements must include fair and transparent appointment process that is not influenced by politics, security of tenure and adequate remuneration, administrative independence, adequate resources and exclusive jurisdiction over judicial issues. And there is judicial authority for this thought from the Supreme court of Canada in Valente v The Queen, [1985] 2 S.C.R. 673(at pp. 685 and 687) stated: “It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative 7 Dieng, A. The Rule of Law and the Independence of the Judiciary: An Overview of Principles (1992) at 35
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relationships to the executive or legislative branches of government...The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in Judicial independence as a concept guarantees the right of the citizen to a fair and expeditious trial. It will be distinguished from separation of powers, a concept that provides checks and balances between the three independent branches of the same government to prevent abuses of power. what is essential to its function, he or she cannot be said to be an independent tribunal.” 8 Judicial independence as a concept guarantees the right of the citizen to a fair and expeditious trial Judges are only one part of the justice sector. This sector encompasses all three branches of Government, the Legislative –making laws; the Executive – policing and penal; the Judiciary – adjudicative. It also encompasses non-governmental private sector entities, such as the Bar, Human Rights organizations, Training Institutes, Law schools and other relevant civil society organizations. It is important in discussing judicial independence that it is borne in mind that there is one government with three distinctive and separate branches or powers. So, Judicial independence does not mean judicial autonomy. All three branches need to interact and cooperate for the public benefit. There is no need for the executive to fear the development of judicial authority. I can do no better than to adopt the words of Alexander Hamilton in the Federalist No 78 “The judiciary …will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them... the judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society; and can take no active resolution whatever. It may be truly said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
8
Valente v The Queen (1985) 2 S.C.R. 673 at 687.
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It is necessary to distinguish between the separation of powers of the three branches of the state and the independence of the judiciary, although both are critical parts of the constitutional bedrock upon which our societies are built. The theory of separation of powers, constitute a system of mutual checks and balances aimed at preventing abuses of power. Each of the three branches is limited in its authority and its powers. None of them is omnipotent. The legislative branch, the executive branch and the judicial branch have no authority beyond that granted them in and by the Constitution. The risks experienced in relation to the role of the executive in fixing the remuneration of judges. Discussion illustrated by two cases (2): The Republic of Bangladesh, Secretary, Ministry of Finance, Government of Bangladesh vs. Hossain and others (Civil Appeal No 79 of 1999) by the Hon. Mustapha Kamal C.J.; and the Canadian case of Provincial Court Judge’s Association of New Brunswick v New Brunswick Minister of Justice et al [2005] 2 S.C.R. No. 47.
Adequate Remuneration is an essential element of judicial independence. In the Jamaican, Constitution, the related provisions are set out in section 101: that the remuneration/emoluments shall be prescribed by law and that it shall not be altered to his disadvantage while in office. The question as to the role of the executive and legislature in setting the levels of judicial remuneration has been a vexed question here in Jamaica, and bubbled over into public discussion as the extent to which the executive could reject the recommendations of an independent commission set up to fix judicial salaries. I think it is fair to say that one of the internationally accepted standards of judicial independence is that the judges should not have to negotiate directly with the executive and the salaries should be managed by an independent commission. The controversy arises over whether the executive is bound to accept the decision of the commission.
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The best known judicial discussion on this issue was in the Canadian case of Provincial Court Judge’s Association of New Brunswick v New Brunswick Minister of Justice et al [2005] 2 S.C.R. No. 47.
In this case, the court laid down that financial security embodied three
requirements. First, that judicial salaries can be maintained or changed only by recourse to an independent commission, second that no negotiations are permitted between the judiciary and the government because of the danger that the public might think the judges could be influenced either for or against the government because of issues arising from salary negotiations, and thirdly that judicial salaries should not fall below a certain level. That case revealed, however, that the existence of an independent commission does not necessarily eliminate the decisionmaking power of the executive in fixing the remuneration, reinforcing the points I made earlier on the distinction between independence and separation of powers.
The litigation in that case arose because the Government did not accept the recommendations of the commission. The judgment of the court emphasized the separation of powers because it ruled that the power to determine judicial compensation belongs to governments, although the power is not absolute. The recommendations of the commission were not binding, but the government had to take them seriously and could only depart from them if they gave legitimate reasons in good faith which reflected the public interest in the commission process, the depoliticization of the remuneration process and the need to preserve judicial independence. The courts would have the power to review the decision although it was hoped that would rarely be necessary. It should be noted that in the Canadian case the Canadian courts found that for the most part the government’s rejection of the commission recommendations should not be disturbed for it satisfied the criteria of rationality established by the jurisprudence.
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In contrast, Magistrates are creatures of statute and their remuneration, security of tenure and appointments are addressed by legislation. The disparities between these two groups among others, have met challenges in the Canadian Supreme Court (1997) 9, the Court of Appeal of Scotland (1999) and notably in the Supreme Court of Bangladesh.
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I have chosen for your
reference a lesser known judgment but one that is nonetheless of great importance. It is from the Republic of Bangladesh, Secretary, Ministry of Finance, Government of Bangladesh vs. Hossain and others (Civil Appeal No 79 of 1999) by the Hon. Mustapha Kamal C.J. This case ruled a decision for the Bangladesh Civil Service (Reorganization) Order 1980 to incorporate the subordinate courts as a “Judicial Service” within the Bangladesh Civil Service as one of the Cadre Services was ultra vires the constitution and violated the fundamental right to an independent judiciary which was guaranteed by the constitution. The Chief Justice said inter alia: “The constitutional fallacy of treating the B.C.S. (Judicial), as just one of the many cadres of the civil administrative executive services of the Republic is that it has compromised, jeopardized and destroyed the institutional independence of the subordinate courts. The result is not far to seek. The civil service administrative executive services have righteously regarded and treated the B.C.S. (judicial) Cadre as just one of the Executive Service Cadres like them and have always resented any extra consideration or remuneration in their favour. They have validly argued that if the judicial officers are entitled to higher privileges because of the sedentary nature of their work the B.C.S. (Secretariat) Cadre is also entitled to the same consideration because the nature of their work is also sedentary. The basic reality is that the members of the judicial service perform the judicial functions of the Republic while the civil administrative services perform different kind of work altogether has never dawned on them from the very beginning. This amalgamation or mixing up ... of the judicial service with other civil 9 “Canada: Reference re. Remuneration of Judges of the Provincial Court of Prince Edward Islands and Others (1997) Vol. 150 DLR (4th) Series, p 577, Scotland: Starrs and Chalmers vs. Procurator Fiscal (PF Linlithgow) (1999) SCCR 1052; (2000) SLT 42;
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administrative services has been a monumental constitutional blunder committed during the early tears of liberation, the harmful legacy of which is the dogged and headstrong denial of the proper and rightful institutional status of the members of the judicial service and of magistrates exercising judicial functions at the implementation stage… The status given under our Constitution is not very different from that given by the Indian constitution to the Indian subordinate judiciary and it will be profitable to quote a passage from a decision of the Indian Supreme Court … “The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as members of the council of ministers and the members of the legislature. … The parity is between the political executive, the legislators and the judges and not between the Judges and the administrative executive. The judges at whatever level they may be represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services cannot be placed on a par with the members of the judiciary, either constitutionally or functionally. Therefore, while determining the service conditions of the members of the judiciary, a distinction can be made between them and the members of the other services.” i. The risks caused to judicial independence through acting appointments to the judiciary in relation to the following: i. Temporary assignments for specific issues such as back log reduction ii. The training and probationary service iii. Failure to appoint the Head of a Judiciary for more than a decade
Temporary appointments have different connotations. I must mention the most serious and disturbing one is that the offices of the Chancellor and Chief Justice of Guyana which have been vacant and the functions performed on a temporary basis for more than a decade. It must be unnecessary to detail how this must have hampered the independence of the judiciary and it is a situation that should be remedied and perhaps your association could add your advocacy. On the 11 | P a g e
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other hand, I have been recommending that the back-log reduction program that is so necessary in many jurisdictions could benefit from experienced practitioners who take on judicial assignments on a temporary basis associated with the specific objective of backlog elimination. I doubt that this would constitute any risks. And en passant, I mention the Recorder system in England which serves as a training and probationary opportunity for practitioners who entertain hopes of joining the bench at some stage in their careers.
In this section, I discuss the issue of controlling the administration of the court system. This is an area of tension between the executive and the judiciary as there are genuine issues requiring balancing between the various branches of government. The legislature and executive have to provide the resources and infrastructure, and services to give effect to judicial decisions. The independence of the court is affected by the types of administrative matters that impact on the ability of the court to adjudicate properly. in Jamaica, the introduction of the case management service unit is still working itself out.
ii. The risks to judicial independence caused by who controls the administrative arrangements of the judiciary: inevitably an area of tension between the judiciary and the executive: a. Can efficacy and effectiveness of the court system be guaranteed if the Chief Justice does not have sufficient control over administration? b. The justice sector includes service providers in all three branches of Government how should collaboration be managed?
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c. Should recruitment, discipline and management of support staff come under a separate service commission (e.g. the Judicial Service Commission) and not the Public Service?
The other point I want to explore is the issue of the recruitment and discipline of support staff for the judiciary. Has the time come for the expansion of the judicial and legal services commissions functions to include the human resource administration over these staff and take them out of the control of the public service commission?
iii. The steps that have already been commenced to address the issue of delay which include a. Code of ethics: the establishment of a Judicial Education Institute (“JEI”) for continuing education. b. Additional steps that need to be taken – establishment of a system of measurable performance standards backed by court technology, including efiling and case management solutions. The Bar and members of the Public have been clamoring for a Judicial Code of Conduct. The judges promulgated a document called "Judicial Guidelines" which has chiefly been kept "internal;" that is among the judges. Should the judiciary "fear" such a document? How can it serve to strengthen "Judicial Independence", if at all?
The adoption of a judicial code of conduct has become an international standard for judiciaries and the most recent universal model is the Bangalore principles which have
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influenced the content and application of codes including that used by the CCJ. The code has a dual purpose of informing judges about the standards that should be observed and informing the public of the standards to expect from the judges. It is regarded as an essential part of the independence as most judiciaries emphasize that accountability goes hand in hand in hand with independence.
The codes are to be observed in good faith because the judiciary has lagged behind in enforcement. These codes are not usually binding and there is not a tradition for complaints to be made and investigated. Part of the issue is that notions of security of judicial independence have limited the options for sanctions and that is a matter that is very topical. Usually, the sanctions are removal from office. There have not been much other sanctions. Although in many modern judiciaries, breach of ethical rules has resulted in training and counselling if the breach does not warrant dismissal. Other imaginative remedies are required if it is thought that removal from office is too heavy a penalty for the nature of the breach. But this is an issue which needs to be constantly addressed. It is often thought that the role of the judiciary in declaring a breach is itself an important sanction and the availability of the process an incentive for compliance with the rules of ethical behaviour. One of the sensitive issues is the problem of reserved judgments. This problem has become more acute especially when a judge retires or demits office with judgments still pending. There are increasingly strident calls for those situations to be met by withholding pensionable emoluments until the situation is rectified. It is expected that courts will regulate their own ethics and it is common place for courts to have their own ethics committees enforcing the code of ethics. We also think that the process of developing the code is as important as the content and
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the participation of the judges is critical in getting buy in and acceptance. Since I have been at CCJ we have had two iterations of our code and we have a standing ethics committee. One regional judiciary has requested our assistance in establishing a code of ethics and it was the Suriname. We participated in an interactive ethics development program over an 18-month period which resulted in the publication of the code in October 2015.
The objectives and results of judicial education and judicial reform should be identical. Education therefore is a transformative tool for the judiciary. The vision I had for our region has been that there would be a regional educational body with national bodies supporting each court system. The regional body would link to the Commonwealth Judicial Education Institute (“CJEI”). This would be meaningful because the issues affecting the judiciary anywhere are the same that affect judiciaries everywhere and linking regional and commonwealth wide institutions save reinventing the wheel and accessing the experience of others. At the CJEI we have a portal and encourage each judiciary to put their training material on line so that it could be shared with other judiciaries. The main activities of the CJEI are the intensive study program for judicial educators and the biennial program for developing and sharing training modules of topical issues. So that the judicial education institutes around the commonwealth address the same cutting-edge issues. Jamaica has very recently established its own Judicial Educational Institute (“JEI”). The national JEI in many commonwealth countries are well funded institutions with their own buildings, equipment and budgets aimed at supporting the needs for improving judicial education. They are well staffed with experienced judges and professionals in related fields. The training for developing national plans include doing needs analysis to determine the needs of the
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nation and developing plans to address the needs that are so identified. There are many standards that have been established but the targets of the program should include the totality of the judiciary and its support. The chain is as strong as its weakest link. Perhaps a more important adage is that everyone is important in the process of justice delivery.
In terms of judicial accountability, the educational institute is an important body because if properly presented it could demonstrate the steps taken by the judiciary to improve justice delivery and may be able to publish standards by which the judiciary could be held to account. In these times of good governance, the JEI is an important part of the accountability of the judiciary and for that reason its plans and programs should be transparent and published.
iv. Unjust criticism of the judiciary is another risk to judicial independence Criticism of the judiciary is valuable, not only because it allows individual members of society to participate in public discussion, it also contributes to the accountability of judges. 11 In Ambard v. Attorney-General for Trinidad and Tobago, (1936) AC 322 at p. 335, Lord Atkin illustrates the point that indeed, the courts should welcome public criticisms: "...whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."
11
Barendt, “Michael K. Addo (Ed.): Freedom of Expression and the Criticism of Judges: A Comparative Study of European Legal Standards (Book Review)� 702
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Lord Denning in Regina v. Commissioner of the Metropolis ex parte Blackburn (1968) 2 WLR 1204 explained why the courts did not fear or resent criticism. It was because, “there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man … to make fair comment, even outspoken comment, on matters of public interest…Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.” In the last decade, in many countries of the common law, the general deference formerly paid to judges, has been eroded. Attacks on judges have now become commonplace. Criticism of the judicial decision-making and judges themselves come from all quarters of society; “ordinary” citizens, media commentators, legal academics and politicians who see mileage in that course. Some of these criticisms can be pointed and vigorous, but constructive, some pass the minimum indicia of civility. Some question the legitimacy of judicial making and raises the specter of inappropriate interference or pressure on the judiciary. The critics condemn particular decisions, including positions taken by particular judges. From time to time the attack individual judges at a personal level. Taken individually, these comments may appear to merely make a contribution to the debates on judicial decision-making. However, taken collectively, they have the ability to undermine public confidence in the judiciary. The judgments of Ambard and Blackburn emphasized the importance of free speech in relation to criticism of the courts but they also made it clear that there are limits to freedom of expression in this context. Blackburn also highlighted the position traditionally taken by the 17 | P a g e
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courts to stay silent and remain above the fray and not engage in back and forth discussion with detractors. as it is expected that other institutions would stand up for the integrity of the judges and the administration of justice. Lawyers have an ethical commitment to the rule of law and the proper administration of justice regardless of professional self-interest and the interests of their clients. To that end, they should be concerned to ensure that the judiciary is competent, of the highest quality and above all independent. The bar must always be ready to offer its public support and take whatever steps are necessary to vindicate the rule of law. In the face of media campaigns which unfairly target judges, it is important that members of the legal profession-step forward to defend, explain and support judicial decisions since neither the judges in question nor their colleagues are able to join the debate or defend themselves. The reason why such supportive action is necessary is twofold. First, so that the public can appreciate the judicial decision by explaining what the judge has done so that the judicial process is vindicated and public confidence is maintained in it; and secondly, so that the incessant attacks in which judges are vilified‌ and cannot respond do not over time erode that confidence and resilience without which independence of the judiciary cannot survive. The media has a critical role to play in our society. However, at the same time, they have a great deal of power with which comes the concomitant responsibility. Section 33 of the International Bar Association Code of Minimum Standards developed in 1982, provides that “it should be recognised that judicial independence does not render the judges free from public accountability, however, the press and other institutions should be aware of the potential conflict between judicial independence and excessive pressure on judgesâ€?. Notably, there in no such equivalent in the Judicial Codes of Conduct in the region, balancing the need for accountability
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with responsible journalism. Similarly, legal and other academics have a duty to address societal concerns, critique the judgments of the court and make well developed, well formulated criticism based on sustained analysis, and make proposal for change and improvement. The Government must also play a role in defending the Judiciary from unwarranted attacks. This was reinforced by the statement of Chief Justice Andrew Li as quoted on the Radio Television Hong Kong programme “Viewpoint” on January 30, 2000, where he was quoted as saying – “where the courts come under unwarranted attack, it is the constitutional responsibility of the Government, that is the executive authorities, to explain and defend the fundamental principle of judicial independence, whether or not the decision in question is in its favour.” In this regard, some commentators are of the view that the Attorney-General, as the traditional leader of the legal profession, should in appropriate cases respond to unwarranted attacks on the judiciary 12. The time may have come where more must be done by way of public education on the importance of judicial independence in our democratic societies to ensure that public commentary does not diminish judicial independence. We all have a stake in judicial independence, whether we agree with particular decisions or not. Those of us in the legal community, especially, as practitioners or academics have an obligation to challenge threats to judicial independence whether they come from the government or individuals.
12 American Bar Association Section of Litigation Winter Leadership Meeting Maui, Hawaii 5 January 1998 Attacks On Judges - A Universal Phenomenon The Hon Justice Michael Kirby AC CMG. Last accessed http://www.hcourt.gov.au/assets/publications/speeches/formerjustices/kirbyj/kirbyj_maui.htm
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v. Another sore point locally is the sudden appointment of many judges (especially prosecutors from the DPP's office) without posts/vacancies being advertised. What effect, if any, does this have on "judicial independence"? An important safeguard for judicial independence is the appointment process for judges. Some international standards have become generally accepted. The more important ones are vacancies must be widely advertised and the selection process should be competitive and merit based on criteria that are published. The definition of transparency varies from country to country with probably the most transparent process adopted by Kenya a few years ago with the selection interview of candidates being captured live on tv broadcast to the whole nation. This is not usual but the public would normally be informed of the process and the result. Will develop.
vi. The issue of regionalism and shared resources for improvement of the justice delivery. Does APEX provide opportunity for the judiciary and legal profession to contribute to redress risks to judicial independence? The highest or APEX Court in each country usually promotes education and reform programs. The UK supreme court does this for the courts in the UK. At the CCJ we have understood this as part of our mandate, as an independent issue not linked to any other mandate such as the final appellate jurisdiction. Part of the rationale for APEX is capacity building through training and using cooperative strategies that leverage the best practices and trainers from the entire region. Conclusion In closing, I wish to reiterate that judicial accountability must be considered as a necessary corollary to the fundamental principle of an independent and impartial judiciary. We must strive to ensure that the two concepts co-exist and thrive for the benefit of all citizens. We should 20 | P a g e
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always be aware that a tremendous amount of trust and faith is placed in the judiciary by the people to whom they serve. In order to safeguard their independence, judges must therefore remain appropriately accountable to the people in the exercise of their functions. I am convinced that we in the Caribbean Judiciary will continuously strive to meet this standard.
The Right Honourable Sir Dennis Byron
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