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Judicial independence important
10/16/2009
By Dorian Bryan
JUDICIAL independence is critical in any democracy and should be protected at all costs.
The point was made by Chief Justice Sir David Simmons during an address which was delivered to the 15th Triennial Conference of the CMJA in the Turks and Caicos Islands. Speaking on the topic “Aspects of Judicial Independence and Accountability – Lessons for the Commonwealth Caribbean” the point was made that judicial independence was a critical element of law and order. It remained one of the essential elements of good governance and should be protected at all costs. Within the last two weeks it has been reported that the Chief Justice of Trinidad and Tobago, the Hon. Ivor Archie, has been moved to express his serious concern that proposed new constitutional arrangements for that country threaten the independence of the judiciary. So that maintenance of the independence of the judiciary is a real, live, practical matter which all judicial officers must guard jealously. “Eternal vigilance is the price of freedom.”
Confidence in the effectiveness of the judicial process was something which needed to be seen as critical as well. Now was not the time, it was argued, to simply take these things for granted. “However, tradition and public opinion are no longer sufficient safeguards for judicial independence. It is now accepted that more should be done legislatively and administratively to guarantee the principle as a constitutional value in itself. It is important to promote and maintain judicial independence both in fact and as it is perceived objectively by the public. In order to maintain confidence in the administration of justice, the judiciary must be and be seen to be independent of the legislative and executive branches of government. In building confidence the legal profession has an obligation not only to protect judicial independence, but also to ensure that the public understands, respects and supports the principle.”
This independence, must be encased in the views that an independent way of reaching a decision must be maintained. This included the realisation and practice that the Judicial branch of Government, should be seen as an equal partner to the Executive and the Legislative Branches of Government. Internally within the judicial system, it was maintained that individual decisions must be free of interference.
The selection process of judges was also a topic of discussion. It was pointed out that normally judges were appointed the Constitutions in the Commonwealth Caribbean, through a Judicial and Legal Service Commission to “recommend the appointment, removal and discipline of persons in the judicial and legal service”.
The point was made that this Judicial and Legal Service Commission was in place in Barbados between 1966 and 1974, and was involved in the appointment of judges.
“However, the Commission is no longer involved in the process since 1974 when the Constitution was amended to provide for appointment of judges by the Governor-general on the recommendation of the Prime Minister after consultation with the Leader of the Opposition – s.81(1) of the Constitution.”
It was also stated that advertising for judges does not take place.
“Advertisement of judicial vacancies and appointment by an independent commission will surely lead to greater transparency and buttress the principle of judicial independence. It is a practice worthy of adoption by countries which have not yet embraced the paradigm.”
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