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CJ on prison law: No breach of principle

Thursday, July 24, 2014

Chief Justice Ivor Archie says no breach of the principle of the separation of powers was committed when he consulted with Justice Minister Emmanuel George on the drafting of the Miscellaneous Provisions (Prisons) Bill, which was expected to be approved in the Senate yesterday.



Opposition Senator Camille Robinson-Regis and Independent Senators Helen Drayton and Elton Prescott, SC, expressed concern about the consultation after George told legislators about the CJ’s input in the legislation. The minister also said there was consultation with the Law Association on the bill.


Contacted for comment on Tuesday, Archie said he had no comment but yesterday he issued a statement, saying from time-to-time legislation affecting the justice system is sent to the Judiciary and other stakeholders for comment before submission to Parliament. He said that was considered a prudent measure, since the implementation of new legislation often required changes in the way judicial officers function, as well as the re-engineering of the Judiciary’s internal processes or even the alteration of physical plant.


“Consultation reduces the risk of the passage of unworkable legislation,” he added. Archie said as long as the Judiciary did not dictate the form the legislation took, “consultation breaches no principle of separation of powers.” In submitting comments to the Government on proposed legislation, he said: “The Judiciary is not making policy, it is commenting where appropriate and when invited, on policies formulated by the Executive and articulated in draft legislation.”


He said much of the primary legislation passed by the Parliament was unworkable without secondary legislation in the form of rules promulgated by the Rules Committee, which is chaired by the Chief Justice and includes the Attorney General and representatives of the Bar. “The process of consultation, therefore, is also relevant to the preparation of these rules and continues during such preparation,” CJ added.


He also explained that the Judiciary could make and had, from time-to-time, made specific suggestions for law reform with a view to enhancing the fair and efficient delivery of justice. He said: “Ultimately, however, the courts are obliged to interpret and apply what is passed by Parliament, not what the Judiciary or any other body recommends.”


Commenting specifically on the Miscellaneous Provisions (Prisons) Bill, the CJ said it addressed the welfare and management of prisoners detained pursuant to the orders of the court, adding that, many people were unaware that judges of the Supreme Court were, ex-officio, official prison visitors. The Judiciary, consequently, in response to an invitation from the ministry for comments on the legislation, indicated the considerations it felt might be relevant to the establishment of an Inspectorate of Prisons and Appeals Tribuna, he said.


The CJ’s comments on the bill were contained in a letter to George in March this year. Additionally, he said, without attempting to say what form any such provisions should take, it drew attention to relevant case law on compulsory drug and HIV testing.


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