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Independence of the Judiciary

Wednesday, January 23, 2013

The threat posed to the Judiciary by the all-inclusive powers of the Prime Minister is not anywhere near as apparent and patently against the doctrine of the separation of powers as is the control of the Parliament by the Prime Minister and the Cabinet.


Nevertheless, in the search for areas of the 1976 Republican Constitution which are in desperate need of reform to achieve, among other things, meaningful separation of powers among the Parliament, the Executive and the Judiciary, there is need to focus on aspects of the Judiciary which continue to be captive of the Prime Minister and Cabinet.


As claimed in 1999 by Chief Justice Michael de la Bastide, the Government, through Attorney General Ramesh Maharaj, was seeking to use Government’s financial control of the judiciary’s budget and certain aspects of the human resources function of the courts as a means through which it could exercise some form of control over the Judiciary.


As interpreted by de la Bastide, the exercise of such financial control over the Judiciary by the AG having to agree with the financial and administrative programme of the Judiciary before he could submit it to Cabinet and the Parliament for approval was a threat to the independence of the Judiciary. Two commissions, one conducted by respected Caribbean jurist Justice Prof Telford Georges, and the other headed by Britain’s Lord Mackay, found differently.


Georges noted, “The Attorney General has no responsibility to Cabinet for the administration of justice. Such a responsibility would connote a degree of control over the operation of the judiciary, and could not properly be given to him.” Lord Mackay did not agree that there was any diabolical intention on the part of the AG but urged the two arms of Government to work together in the national interest.    


Needless to say, there was disagreement over the two reports. Subsequently, chief justices Sat Sharma and, most recently, incumbent Chief Justice Ivor Archie, in different ways have expressed concern over issues such as the Executive having some form of control over the human resources of the Judiciary.



Archie’s concerns were with the delays being experienced by the Judiciary with achieving the best and quickest industrial agreements for its human resources. He advocated that such HR powers be exercised completely by the Judiciary.


Notwithstanding that succeeding chief justices have shown themselves alert to potential incursion, real or perceived, by the Executive which may be eager to exercise power over the courts while paying lip service to the separation of powers when it makes good political copy, there is clear need for further institutional safeguards to create an impenetrable firewall between the Government and the Judiciary.


One position taken by Commonwealth leaders in the Latimer House Principles for the Commonwealth (2003) was the need to provide adequate funding for the Judiciary with annual funds being released to courts on the basis of submissions made. Once the Parliament has passed the budget of the Judiciary, the funds must then be released in total with the Judiciary having the responsibility to comprehensively account at the end of the financial year.


This particular principle is opposed to what now exists with the Judiciary having to constantly make requests for funds already passed by the Parliament through the ministry of finance like any other part of the public service, clearly an untenable situation which is a subtle undermining of the institutional independence of the courts.


So while clearly the Judiciary is not subjugated to the fiat, likes and dislikes of the Prime Minister, as the Cabinet and Parliament are, a full and institutional separation of the powers between the Executive and the Judiciary has to be achieved.


There are other areas of constitutional and other forms of domination by the Prime Minister which need to be seriously examined and amended in the constitutional reform exercise up ahead. For instance, why should the Prime Minister have any say in who should receive national awards?


The experience since the start of the independence awards has clearly demonstrated that many awards are given on the basis of political affiliation and other such partisan criteria.  


At present, the Chief Justice heads the committee which receives recommendations of citizens deserving of award. However, after the committee makes its merit-based assessment of the most deserving, the list is passed on to the Prime Minister, who then has the power to remove from the list those not politically favoured and select those who, in one way or the other, have served or will serve the political needs of the Prime Minister and ruling party.


Similarly, the history of allocating the designation of senior counsel to attorneys has been completely subject to politics. All governments, attorneys general and prime ministers have not only awarded the title to their friends, family members and political supporters, but have adorned themselves, deserving or not, with the designation SC.


These processes have cheapened the granting of awards by the State, and made them into pacotille handouts for the politically well-connected.


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