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Judicial Independence [[[in Keeping with the theme, The Profession, Business and Ethics of Law]]] Are there risks?

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 have to 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. Every aspect of our existence is affected by the quality of the performance of the justice sector in our community.

Social and Economic Benefits The benefits from an efficient judicial system will include the following characteristics, which impact on our economic and social existence: 

The deterrence of wrongful conduct and protection of individual and public safety and property.

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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.

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The resolution of private disputes.

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The redress of abuses of power and provision of protection from arbitrary actions by the State, and other powerful organizations and individuals.

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Upholding socially accepted standards of fairness and morality.

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Rendering service to all without distinctions based on ethnicity, race, gender or socio-economic status.

Governments in our region need to invest in justice sector development and reform for social and economic goals. 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 helps provide a stable environment where the longterm 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” One Government – Separate Branches 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,

See: Challenges of Capacity Development: Towards Sustainable Reforms of Caribbean Justice Sectors Volume I: Policy Document. IDB/CGCED, May 2000;

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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. 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.”

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 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

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.

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 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.”

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.

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.

3See:

https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx#Standards, Principles and Ethics See: Article 10 The Universal Declaration of Human Rights (1948) http://www.un.org/en/universal-declaration-human-rights/ 5The 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 4

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.

12 That the State must provide the judiciary with adequate resources to carry out the judicial function.

These standards should not be considered as being onerous. They should be embraced and enthusiastically applied. As our economic and social welfare is dependent on the quality of our justice system. This idea has wide acceptance. 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�

7 Dieng, A. The Rule of Law and the Independence of the Judiciary: An Overview of Principles (1992) at 35

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 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 what is essential to its function, he or she cannot be said to be an independent tribunal.” 8

Judicial Independence – a right of the citizen The protections for judicial independence; protections such as security of tenure, financial security and institutional independence – were “not created for the benefit of judges, but for the benefit of the judged.” 9 Independence is not a perk of the judicial office. It is a guarantee of the institutional conditions of impartiality. It is the “cornerstone, a necessary prerequisite, for judicial impartiality” and critical to the public’s perception of the impartiality of the judiciary. The Constitutions of the Commonwealth Caribbean demonstrate that the right to a fair trial within a reasonable time is the constitutional right of the citizens. Judicial independence is not a privilege or prerogative of the individual judge. It is the responsibility imposed on each judge to enable him or her to adjudicate a dispute honestly and impartially on the basis of the law and the evidence, without external pressure or influence and without fear.

Valente v The Queen (1985) 2 S.C.R. 673 at 687.

Gratton v Canadian Judicial Council, [1994] 2 F.C. 769 (at para. 16), quoted with approval in the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (at para. 329) 8 9

Risks to judicial independence The risks to judicial independence is most often classified within the framework of tensions between the judiciary and the executive, However, there are many predators of judicial independence besides those presented by the abuse of executive powers including the judiciary and the legal fraternity.

Adequate Remuneration is an essential element of judicial independence. In the Jamaica constitution, the provisions relating to it 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 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.

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, as was experienced in Jamaica that the existence of an independent commission does not necessarily eliminate controversy on the issue of judicial remuneration.

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.

Chapter VII, sections 97- 113, the chapter addresses the judicature. Part 1 and 2 of Chapter VII of the 1962 Constitution, establishes the judiciary as an independent third branch of government. It provides for security of tenure for judges, assists in achieving independence of the judges and fosters the separation of powers. Section 98 of the Constitution provides for the appointment of the Chief Justice by the Governor-General upon the recommendation of the Prime Minister after consultation with the Leader of the Opposition. Section 98(2) provides that the Puisne Judges of the Court are to be appointed by the Governor-General acting on the advice of the Judicial Service Commission.

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) 10, the Court of Appeal of Scotland (1999) and notably in the Supreme Court of Bangladesh. 11

“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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