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Friday, June 27, 2025

New law term opens

CJ boasts of judiciary's achievements

by

20090917

The fol­low­ing is the first part of the speech de­liv­ered by Chief Jus­tice Ivor archie at the open­ing of the law term yes­ter­day:

Be­cause of the par­tic­u­lar fo­cus that I want to adopt for this year's open­ing ad­dress I will take the un­con­ven­tion­al step of ac­knowl­edg­ing at the be­gin­ning, rather than at the end, those per­sons who have re­tired dur­ing the past year and whose con­tri­bu­tions will en­dure and leave an in­deli­ble mark on this in­sti­tu­tion, its ad­min­is­tra­tion on our ju­rispru­dence and most of all on the lives of those with whom they have come in­to con­tact.

Af­ter 22 years of dis­tin­guished ser­vice, Jus­tice of Ap­peal Roger Hamel-Smith has re­tired from the bench. Ad­mit­ted to prac­tice as a so­lic­i­tor in 1969, he has fol­lowed in the tra­di­tion of ex­cel­lence set by many mem­bers of his fam­i­ly in­clud­ing his grand­fa­ther who found­ed the fam­i­ly firm a cen­tu­ry ago.

He has made an enor­mous con­tri­bu­tion to lo­cal ju­rispru­dence and con­tin­ues to con­tribute to the pro­fes­sion in a pri­vate ca­pac­i­ty. We thank him for his con­tri­bu­tion and for his lead­er­ship in dif­fi­cult times and wish him a long and pro­duc­tive re­tire­ment.

Jus­tice of ap­peal, Madame Jus­tice Mar­got Warn­er has been de­scribed as a first class hu­man be­ing. That was per­haps her most im­por­tant qual­i­fi­ca­tion to be a judge. Gen­er­ous, com­pas­sion­ate and fierce­ly in­de­pen­dent, she served the ju­di­cia­ry for 18 years, with dis­tinc­tion.

She au­thored many im­por­tant judg­ments, in­clud­ing the now fa­mous hi­jab case and was the first woman to ever act as Chief Jus­tice. She now has a lit­tle more time to pur­sue her oth­er pas­sions as an artist and mu­si­cian. We shall miss her.

The re­tire­ment of these two dis­tin­guished ju­rists rep­re­sents the pass­ing of an era. They have left us younger judges enor­mous shoes to fill but they have al­so pro­vid­ed us a firm foun­da­tion. We salute them!

We al­so bid farewell to jus­tice of ap­peal Stan­ley John who chose to de­part well be­fore his re­tire­ment age to pur­sue a ca­reer in the Ba­hamas. We wish him well in his fu­ture en­deav­ours.

My trib­utes would not be com­plete with­out men­tion of Mr Gary Kel­ly who has served the ju­di­cia­ry loy­al­ly and tire­less­ly for 18 years in the key po­si­tions of ad­min­is­tra­tive sec­re­tary to the Chief Jus­tice and lat­ter­ly the court ex­ec­u­tive ad­min­is­tra­tor.

Mr Kel­ly had many op­tions up­on en­ter­ing the le­gal pro­fes­sion, in­clud­ing re­main­ing at his fa­ther's law firm. He chose in­stead to de­vote his life to pub­lic ser­vice, at great sac­ri­fice to his health, fam­i­ly and fi­nances. He has helped to see us through sev­er­al sig­nif­i­cant trans­for­ma­tions and thanks can nev­er ad­e­quate­ly mark the val­ue of his con­tri­bu­tion. We wish him a long re­tire­ment in good health.

There are oth­ers who have left us this year and some are ac­knowl­edged in the an­nu­al re­port. Time does not per­mit me to men­tion all of them but it does not mean that our grat­i­tude is in any way di­min­ished.

My per­son­al thanks go out as well to all the mem­bers of the ju­di­cia­ry staff, at every lev­el, who have con­tin­ued to pro­vide un­stint­ing sup­port and ser­vice dur­ing the past year. I would al­so like to ex­press our ap­pre­ci­a­tion for the work of the MTS staff through­out the year and es­pe­cial­ly for the ef­fort put out in prepar­ing the premis­es for to­day's ac­tiv­i­ties.

My spe­cial thanks to the Court Ad­min­is­tra­tion De­part­ment and all who have or­gan­ised and ex­e­cut­ed to­day's open­ing cer­e­mo­ny and oth­er events. We could not do it with­out you. Last but by no means least, I must thank Canon Samp­son of the cathe­dral church of the Holy Trin­i­ty for gra­cious­ly host­ing this morn­ing's ser­vice once again.

And of course I would like to ex­tend con­grat­u­la­tions and wel­come to Jus­tices Stollmey­er, Nar­ine and Smith who have been el­e­vat­ed to the Court of Ap­peal and to Jus­tices Boo­dos­ingh, Mon De­sir and Browne-An­toine who will re­place them as per­ma­nent ap­pointees to the High Court bench

Fel­low cit­i­zens:

The open­ing of the law term presents a rare oc­ca­sion for the Chief Jus­tice to ad­dress the na­tion­al com­mu­ni­ty and, where there are im­por­tant mat­ters to be dis­cussed, it is an op­por­tu­ni­ty that can­not be squan­dered. I have there­fore thought long and hard about the con­tent of this speech.

I have ag­o­nised about its tone and con­tent, but there has nev­er been any doubt in my mind that there are some things that I must say, things that I want us all to think about and things that must not be lost in a wel­ter of sta­tis­ti­cal in­for­ma­tion.

The oc­ca­sion of the Chief Jus­tice's speech at the be­gin­ning of the new law term has come to as­sume some­thing of a tra­di­tion­al for­mat. Last year I took some trou­ble to set out the vi­sion and plans that would guide us dur­ing 2008 to2009 and suc­ceed­ing years. I un­der­stand, there­fore that you may be ex­pect­ing a de­tailed ac­count of my stew­ard­ship and the progress that we have made to­wards the ful­fill­ment of our goals.

Well, de­spite the loss of near­ly $100 mil­lion form our bud­get last year ow­ing to changed eco­nom­ic cir­cum­stances, we have made progress. But I do not want to dwell too long on that be­cause much of it is re­count­ed in the an­nu­al re­port, which you can read. I shall re­fer on­ly briefly to our ac­com­plish­ments be­cause I re­al­ly want to have a dif­fer­ent con­ver­sa­tion with the na­tion this year.

I could point out that some of our ob­jec­tives have not yet been achieved be­cause we have had to fo­cus, as was in­ti­mat­ed last year, on the dif­fi­cult task of es­tab­lish­ing the right hu­man re­source base to take us for­ward. Find­ing and re­cruit­ing the right peo­ple for key po­si­tions has been dif­fi­cult.

How­ev­er, some key po­si­tions such as the di­rec­tor of plan­ning, the di­rec­tor of hu­man re­sources and the se­cu­ri­ty man­ag­er have been filled and we are in the process of pop­u­lat­ing a re­struc­tured court ad­min­is­tra­tion de­part­ment. We hope to be­gin that process soon for the hu­man re­sources de­part­ments. We are there­fore now bet­ter poised to move for­ward, but I sus­pect that most peo­ple re­al­ly want to hear about re­sults, not ex­pla­na­tions.

I could trum­pet the fact that de­spite all the hu­man and ma­te­r­i­al re­source con­straints we de­ter­mined 79,226 mag­is­te­r­i­al, 101 in­dict­ments, 4,968 High Court civ­il, and 430 ap­pel­late mat­ters last year but if your mat­ter be­fore the Court was not com­plet­ed those fig­ures will prob­a­bly fail to im­press you.

I could leap to the de­fence of the mag­is­trates who, like all of us are not per­fect but nev­er­the­less on­ly had 258 or 0.3 per cent of the 79,226 mat­ters dis­posed of ap­pealed and of those on­ly 49 or 19 per cent over­turned and say that crit­i­cisms of their per­for­mance are there­fore ex­ag­ger­at­ed. These are pub­lished sta­tis­tics and sim­i­lar to those pub­lished last year, but facts are in­con­ve­nient things for those with an un­bal­anced agen­da.

I could say that, of those ju­ris­dic­tions that still cling des­per­ate­ly to the Privy Coun­cil, the per­cent­age of the de­ci­sions of our Court of Ap­peal that are up­held is slight­ly bet­ter than the av­er­age but you can check the Privy Coun­cil Web site for your­self.

I could spend a con­sid­er­able time list­ing the things we have man­aged to ac­com­plish if that would give some re­as­sur­ance, but I pro­pose on­ly to take a brief de­tour to out­line some of the sig­nif­i­cant ones:

Phase 2 of the Point Fortin Mag­is­trates' Court re­fur­bish­ment is now com­plete.

Con­struc­tion ser­vice providers have been en­gaged and mo­bilised for the pro­vi­sion of mod­ern fa­cil­i­ties at Cou­va, Rio Claro and Siparia Mag­is­trates' Courts. Cou­va and Rio Claro will be com­plet­ed be­fore the end of this term and Siparia near­er the end of 2010.

Cab­i­net ap­proval has been ob­tained for the ac­qui­si­tion of lands for the con­struc­tion of the Ch­agua­nas Mag­is­trates' Court Com­plex. The build­ing orig­i­nal­ly ear­marked to house the Court tem­porar­i­ly will now be used to ac­com­mo­date a cen­tralised Coro­ners' court with min­i­mal ren­o­va­tion and sig­nif­i­cant cost sav­ing;

Sev­er­al new po­si­tions of Coro­ner have been cre­at­ed and will be filled as soon as the in­fra­struc­ture is in place;

The new train­ing labs on Fred­er­ick Street are com­plete and pro­vide a train­ing en­vi­ron­ment that ac­cu­rate­ly sim­u­lates the court­rooms and reg­istries in re­spect of process­es and tech­nol­o­gy.

Af­ter sen­si­ti­sa­tion and con­sul­ta­tion ses­sions with all stake­hold­ers to re­fine the pro­to­cols, the video­con­fer­enc­ing equip­ment for the re­mand hear­ings has been suc­cess­ful­ly in­stalled and test­ed at se­lect­ed court­rooms in Scar­bor­ough, St George West, and San Fer­nan­do Mag­is­trates' Courts and the To­ba­go and Fred­er­ick Street Pris­ons and the Arou­ca Re­mand Yard.

The To­ba­go pi­lot goes live next month and is ex­pect­ed to fa­cil­i­tate re­mote vis­i­ta­tion as well as re­mands. Video­con­fer­enc­ing is ex­pect­ed to have ma­jor im­pact on trans­porta­tion and se­cu­ri­ty costs and risks, as well as sav­ing tran­sit time and re­liev­ing crowd­ed mag­is­trates' court lists.

The promised re­cruit­ment, ori­en­ta­tion and train­ing of cus­tomer ser­vice rep­re­sen­ta­tives has been com­plet­ed.

Elec­tron­ic screen­ing and sur­veil­lance sys­tems have been in­stalled at the Scar­bor­ough High and Mag­is­trates' Courts and at Point Fortin.

Cab­i­net has al­so ap­proved the ac­qui­si­tion of the St Joseph's Con­vent build­ing for cus­tomi­sa­tion to de­liv­er Fam­i­ly Court ser­vices in San Fer­nan­do.

–Con­tin­ues to­mor­row

There are now no more mat­ters to be as­signed from the Civ­il Old Rule back­log.

Un­for­tu­nate­ly the fact that cap­i­tal al­lo­ca­tions in this year's bud­get have been fur­ther re­duced will have a crip­pling ef­fect on our de­vel­op­ment plans. We re­quest­ed $393 mil­lion for the de­vel­op­ment pro­gram for 2009/2010.

That means there will be no Fam­i­ly Court roll out this year with­out a sig­nif­i­cant sup­ple­men­tary ap­pro­pri­a­tion and our abil­i­ty to de­liv­er on the re­fur­bish­ment of phys­i­cal fa­cil­i­ties es­pe­cial­ly in the mag­is­trates' courts is se­vere­ly re­strict­ed. But we nev­er cry over spilt milk, we will just do the best we can, as al­ways.

These are on­ly some of the sev­er­al ac­com­plish­ments that we can re­count, but to­day I don't re­al­ly want to spend too much time on that, there is a more ur­gent pri­or­i­ty. To­day I want to talk about Con­sti­tu­tion­al Re­form. That dis­course is both nec­es­sary and in keep­ing with this year's theme of "Ac­cess to Jus­tice", which is a con­cept that goes be­yond the mere pro­vi­sion of a fo­rum for the set­tle­ment for dis­putes and is re­al­ly the nu­cle­us around which any just and hu­mane first world so­ci­ety is fash­ioned.

Last year, when I spoke about the is­sue of con­sti­tu­tion­al re­form, I sought to flag cer­tain key con­cerns but at the time and, in the ab­sence of the cur­rent pub­lished draft con­sti­tu­tion, my re­marks were some­what de­void of con­text. Some of them bear re­peat­ing and I im­plore you to lis­ten care­ful­ly.

I did ex­press ap­proval of the fact that the ex­ec­u­tive had un­der­tak­en to put the pro­posed draft con­sti­tu­tion in­to the pub­lic do­main for con­sul­ta­tion and de­bate.

That has since been done and I thought it pru­dent, giv­en the na­ture of ex­er­cise the na­tion is sup­posed to be em­bark­ing up­on, to wait a while and lis­ten to what the peo­ple were say­ing. So far, the re­sponse has been mut­ed. The ju­di­cia­ry is work­ing on a full writ­ten com­men­tary but there are some as­pects of the draft con­sti­tu­tion that I wish to ad­dress as sources of con­cern, mind­ful of the fact that it is said to be a work in progress.

First, how­ev­er, I would like to pro­vide some con­text for my re­marks in the hope that the in­tent will not be mis­un­der­stood. The pro­posed con­sti­tu­tion rep­re­sents some­thing far more fun­da­men­tal than an amend­ment or re­vi­sion of the ex­ist­ing con­sti­tu­tion­al arrange­ments. It is a com­plete rewrite of the so­cial con­tract that is to gov­ern the way in which our in­sti­tu­tions func­tion and in­ter­re­late. Pre­sum­ably it is premised on the as­sump­tion that there are sev­er­al as­pects of the ex­ist­ing con­sti­tu­tion­al arrange­ments that are not work­ing sat­is­fac­to­ri­ly. Pre­sum­ably al­so, the pro­posed arrange­ments have spe­cif­ic ob­jec­tives in mind and are per­ceived to be su­pe­ri­or in achiev­ing those ob­jec­tives. The dis­cus­sion would have been bet­ter in­formed if both the short­com­ings and the ob­jec­tives had been ar­tic­u­lat­ed in writ­ing with some speci­fici­ty along with the draft.

Be that as it may, I trust that as a na­tion, we are mov­ing for­ward on the ba­sis of cer­tain fun­da­men­tal prin­ci­ples to which we all ad­here. These in­clude the para­mount­cy of the rule of law, the sep­a­ra­tion of pow­ers and the in­de­pen­dence of the ju­di­cia­ry. I make this as­sump­tion be­cause I have lis­tened very care­ful­ly to what the Ho­n­ourable Prime Min­is­ter has said dur­ing the cur­rent se­ries of pub­lic meet­ings and he has ar­tic­u­lat­ed those prin­ci­ples as the ba­sis for con­sti­tu­tion­al re­form, in­clud­ing the im­por­tance of in­sti­tu­tion­al in­de­pen­dence as well as in­di­vid­ual ju­di­cial in­de­pen­dence in the ad­ju­di­ca­tion of mat­ters be­fore the courts. What I have to say, there­fore, is by way of re­in­force­ment of those prin­ci­ples but in the con­text of the draft that has been put out for pub­lic com­ment. It is a cri­tique of the draft on­ly, and not of any per­son. Per­mit me now to ex­plore for a mo­ment the re­la­tion­ship be­tween those con­cepts.

In our na­tion's Con­sti­tu­tion, we have as­sert­ed our be­lief in "a de­mo­c­ra­t­ic so­ci­ety in which all per­sons may, to the ex­tent of their ca­pac­i­ty, play some part in the in­sti­tu­tions of the na­tion­al life and thus de­vel­op and main­tain due re­spect for law­ful­ly con­sti­tut­ed au­thor­i­ty;"

Gov­ern­ments have no oth­er jus­ti­fi­ca­tion for their ex­is­tence! The Amer­i­cans put it so elo­quent­ly in their De­c­la­ra­tion of In­de­pen­dence, where we find these words:

"We hold these truths to be self-ev­i­dent, that all men are cre­at­ed equal, that they are en­dowed by their Cre­ator with cer­tain un­alien­able Rights, that among these are Life, Lib­er­ty and the pur­suit of Hap­pi­ness. – That to se­cure these rights, Gov­ern­ments are in­sti­tut­ed among Men, de­riv­ing their just pow­ers from the con­sent of the gov­erned, –"

Thus the ex­tent to which our na­tion­al in­sti­tu­tions fa­cil­i­tate the de­vel­op­ment of the type of so­ci­ety just de­scribed is the on­ly true mea­sure of their le­git­i­ma­cy. It is the stan­dard of ac­count­abil­i­ty to which all cit­i­zens are en­ti­tled to hold their lead­ers and state or­gans. And ul­ti­mate­ly, every or­gan of the state, in­clud­ing the ju­di­cia­ry is ac­count­able to the cit­i­zens and to no one else, in re­spect of those ar­eas for which it is re­spon­si­ble.

The rule of Law is un­sus­tain­able with­out scrupu­lous ad­her­ence to the prin­ci­ple of sep­a­ra­tion of pow­ers. It is for good rea­son that we re­fer to the sep­a­ra­tion of pow­ers and not the sep­a­ra­tion of re­spon­si­bil­i­ties. The sep­a­ra­tion of pow­ers is not a pro­vi­sion of the Con­sti­tu­tion. It is the phi­los­o­phy un­der­ly­ing the Con­sti­tu­tion and the frame­work up­on which gov­ern­ment is struc­tured so as to har­ness in­di­vid­ual hu­man na­ture (in the sense of pro­vid­ing both fo­cus and re­straint) to serve so­ci­ety at large. In that con­text, Ju­di­cial In­de­pen­dence is a de­vice, a set of struc­tur­al arrange­ments, to get some­thing done � to im­ple­ment the Sep­a­ra­tion of Pow­ers. George Wash­ing­ton, af­ter the Con­sti­tu­tion­al de­bates in Amer­i­ca said "the true ad­min­is­tra­tion of jus­tice is the firmest pil­lar of good gov­ern­ment"? He un­der­stood that courts are im­por­tant, not sim­ply be­cause they are a ma­jor fo­rum to re­solve dis­putes � oth­er mech­a­nisms are avail­able to re­solve dis­putes � courts are im­por­tant be­cause they are ex­pect­ed to re­solve dis­putes im­par­tial­ly, fair­ly and ac­cord­ing to law. The Amer­i­can found­ing fa­thers held the com­mon con­vic­tion that the Sep­a­ra­tion of Pow­ers was an es­sen­tial bar­ri­er to tyran­ny, to hold­ing gov­ern­ment in check and the pre­ven­tion of ar­bi­trary pol­i­cy­mak­ing. But Ju­di­cial In­de­pen­dence is not achieved sim­ply by a pro­vi­sion writ­ten in the Con­sti­tu­tion. As Madi­son said "while these pa­per pro­vi­sions are nec­es­sary the se­cu­ri­ty of re­al sep­a­ra­tion of pow­er � con­sists in giv­ing those who ad­min­is­ter each de­part­ment the nec­es­sary means to re­sist en­croach­ment of the oth­ers"

The "nec­es­sary means" that are wo­ven in­to the fab­ric of our Con­sti­tu­tion and that are al­so meant to be ob­served as a mat­ter of con­ven­tion are called "checks and bal­ances." In the case of the ju­di­cia­ry, in­de­pen­dent Court Ad­min­is­tra­tion is one of the nec­es­sary checks. Sep­a­ra­tion of Pow­ers is mere­ly a con­cept with­out ef­fec­tive checks and bal­ances. There must be checks and bal­ances on each branch of the gov­ern­ment� in­clud­ing the ju­di­cia­ry. The Ju­di­cial Branch of gov­ern­ment is an equal � not su­pe­ri­or–branch of gov­ern­ment

The Ju­di­cial arm of the state em­braces the prin­ci­ple of Sep­a­ra­tion of Pow­ers based on ap­pro­pri­ate checks and bal­ances which in our case in­clude:

1. Open courts (ac­cess to records)

2. Pub­lic fact-find­ing (jus­tices)

3. Trans­par­ent pro­ceed­ings (tran­scripts)

4. Au­to­mat­ic re­view by the ap­pel­late process

5. Rea­sons for de­ci­sions � pub­lic pro­nounce­ments & writ­ten opin­ions.

6. Sub­mis­sion to Fi­nance and Au­dit Laws (Ac­count­able to the Law)

7. Pub­lic Ac­counts Com­mit­tee (Ac­count­abil­i­ty to Par­lia­ment)

8. An­nu­al Re­port (Ac­count­able to the Pub­lic)

9. Ad­ver­sar­i­al fo­ra

10. Me­dia scruti­ny

11. In­de­pen­dent Con­sti­tu­tion­al Com­mis­sions

Our phi­los­o­phy is in­cor­po­rat­ed in our vi­sion state­ment of which this may be a con­ve­nient time to re­mind you. It is:

".. to pro­vide an ac­count­able court sys­tem in which time­li­ness and ef­fi­cien­cy are the hall­marks, while still pro­tect­ing in­tegri­ty, equal­i­ty and ac­ces­si­bil­i­ty and at­tract­ing pub­lic trust and con­fi­dence"

We ac­cept our re­spon­si­bil­i­ty and are putting our house in or­der. At the last meet­ing of judges held in Ju­ly we adopt­ed a 120-day time lim­it for the de­liv­ery of re­served judg­ments. The code of ju­di­cial con­duct is now sub­stan­tial­ly com­plete and will be for­mal­ly adopt­ed and cir­cu­lat­ed for pub­lic in­for­ma­tion be­fore the end of the year. This is the stan­dard to which we will pub­licly agree to hold our­selves ac­count­able and which you are en­ti­tled to ex­pect and de­mand of us.

But we need in­de­pen­dent and ef­fec­tive court ad­min­is­tra­tion to make the Sep­a­ra­tion of Pow­ers and Ju­di­cial In­de­pen­dence a re­al­i­ty. Ef­fec­tive Court Ad­min­is­tra­tion pro­vides the ju­di­cia­ry with the nec­es­sary de­vice to pro­tect Ju­di­cial In­de­pen­dence.

Ef­fec­tive and in­de­pen­dent court ad­min­is­tra­tion pro­motes pub­lic ac­count­abil­i­ty and pub­lic trust and con­fi­dence. Pro­mot­ing the courts' ac­count­abil­i­ty in the prop­er sense (ef­fec­tive ad­min­is­tra­tion) helps to "re­pel [the] im­prop­er threats to in­de­pen­dence" that con­cerned the Amer­i­can Found­ing Fa­thers. It is my hope that as we con­tem­plate con­sti­tu­tion­al re­form, it will be clear­ly un­der­stood that the on­ly way for­ward is to de­vise mech­a­nisms that pro­mote in­sti­tu­tion­al strength­en­ing in those ar­eas for which each in­sti­tu­tion is re­spon­si­ble, and there­fore ac­count­able. It goes with­out say­ing that there can be no ef­fec­tive and ac­count­able dis­charge of re­spon­si­bil­i­ty with­out the pow­er to con­trol the rel­e­vant process­es and the de­ploy­ment of the avail­able re­sources that fu­el them. And what is the ju­di­cia­ry's re­spon­si­bil­i­ty? The cur­rent Lord Chief Jus­tice of Eng­land, Mr Jus­tice Ig­or Judge has put it this way:

"In a de­mo­c­ra­t­ic coun­try, all pow­er, how­ev­er ex­er­cised in the com­mu­ni­ty, must be found­ed on the rule of law. There­fore each and every ex­er­cise of po­lit­i­cal pow­er must be ac­count­able not on­ly to the elec­torate at the bal­lot box, when elec­tions take place, but al­so and at all times to the rule of law. In­de­pen­dent pro­fes­sions pro­tect it. In­de­pen­dent press and me­dia pro­tect it. Ul­ti­mate­ly, how­ev­er, it is the judges who are guardians of the rule of law. That is their prime re­spon­si­bil­i­ty. They have a par­tic­u­lar re­spon­si­bil­i­ty to pro­tect the con­sti­tu­tion­al rights of each cit­i­zen, as well as the in­tegri­ty of the con­sti­tu­tion by which those rights ex­ist"

It is against that back­ground and un­der­stand­ing that I must con­fess to some con­cern when I read some of the pro­vi­sions of the draft con­sti­tu­tion that re­fer to the ju­di­cia­ry. They do not meet the ob­jec­tives that have been oth­er­wise pub­licly ar­tic­u­lat­ed and, in fact would, if passed, take us in the op­po­site di­rec­tion. In my re­spect­ful view they stem from a fun­da­men­tal mis­un­der­stand­ing of our role and func­tion and have dis­turb­ing im­pli­ca­tions for ju­di­cial in­de­pen­dence. I re­fer in par­tic­u­lar to claus­es 121 to 125, 136 and 142. The mis­un­der­stand­ing lies in the as­sump­tion of a false di­choto­my be­tween the ju­di­cia­ry's ju­di­cial and ad­min­is­tra­tive func­tions and the as­sump­tion that one can be in­de­pen­dent­ly ex­er­cised with­out the oth­er. The dan­ger lies in the po­ten­tial to grad­u­al­ly and sys­tem­at­i­cal­ly strip the ju­di­cia­ry of its in­de­pen­dence and the cit­i­zens of their pro­tec­tion through or­di­nary or sub­or­di­nate leg­is­la­tion re­quir­ing no spe­cial ma­jor­i­ty.

The point is best il­lus­trat­ed by the pos­ing of a rhetor­i­cal ques­tion. If you were one of the par­ties to a law­suit, would you feel com­fort­able in know­ing that the par­ty on the op­po­site side could have ac­cess to the judge's cham­bers, could con­trol the fil­ing of doc­u­ments and the keep­ing of all the records in the mat­ter, the se­lec­tion of the judge who would han­dle the mat­ter, the sched­ul­ing of court­rooms and oth­er re­sources, the com­po­si­tion of the judge's sup­port team in­clud­ing his or her re­search as­sis­tant, all the in­for­ma­tion, tech­nol­o­gy and se­cu­ri­ty as­so­ci­at­ed with the mat­ter and the court, the judge's leave and trav­el ap­proval, train­ing, read­ing ma­te­r­i­al and per­son­nel records?

You might with some jus­ti­fi­ca­tion en­ter­tain great ap­pre­hen­sion that the scales could be tilt­ed against you. Well all of those things are part of what Court Ad­min­is­tra­tion is about and that is the chal­lenge to which the cur­rent draft would ex­pose us. That fact is that in every crim­i­nal mat­ter be­fore the courts and in a large per­cent­age of the civ­il mat­ters, the ex­ec­u­tive arm of the state is on one side and in­di­vid­ual and oth­er­wise pow­er­less cit­i­zens are on the op­po­site side. How, pray tell, can a con­sti­tu­tion mean­ing­ful­ly pro­vide for the ju­di­cia­ry to be in­de­pen­dent on­ly in the ex­er­cise of its ju­di­cial func­tions? And what is one to make of clause 136 which pro­vides that the Chief Jus­tice shall be re­spon­si­ble for the gen­er­al ad­min­is­tra­tion and busi­ness of the Supreme Court (no men­tion here of the mag­is­tra­cy) and yet pro­vide in a lat­er sub­sec­tion that the Min­is­ter of Jus­tice shall have con­trol of ad­min­is­tra­tive mat­ters re­lat­ing to the ju­di­cia­ry as may be pre­scribed? Pre­scribed how, where and by whom? How is the Chief Jus­tice to be re­spon­si­ble, and there­fore ac­count­able, for that which he does not con­trol? The mat­ter is not helped by the ref­er­ence to con­sul­ta­tion. Any­one who un­der­stands con­sti­tu­tion­al lan­guage knows that he who mere­ly has to be con­sult­ed can be safe­ly ig­nored. The Per­ma­nent Sec­re­tary for the Ju­di­cia­ry who will be ap­point­ed by the ex­ec­u­tive Pres­i­dent and re­spon­si­ble for the day to day ad­min­is­tra­tion of the Ju­di­cia­ry will re­port to the Min­is­ter of Jus­tice and not to the Chief Jus­tice. Out­side of the con­struc­tion of build­ings, which is the on­ly per­ti­nent ex­am­ple cit­ed thus far, it is dif­fi­cult to think of any oth­er as­pect of Court Ad­min­is­tra­tion that could be safe­ly de­volved from the ju­di­cia­ry with­out im­ping­ing on its in­de­pen­dence. Con­sti­tu­tions are not nec­es­sar­i­ly places for at­tempt­ing to place ex­haus­tive lists. As we have seen, Court Ad­min­is­tra­tion evolves. Must we amend the Con­sti­tu­tion every time there is a change? It would be a lot sim­pler to ac­knowl­edge ex­plic­it­ly in the Con­sti­tu­tion the prin­ci­ple of in­de­pen­dence of the ju­di­cia­ry in its ad­min­is­tra­tive and ad­ju­dica­tive func­tions if we agree on it.

But it does not end there. Per­haps the most wor­ri­some clause is clause 125, which gives Par­lia­ment the pow­er to con­fer on any court any part of the ju­ris­dic­tion and pow­ers con­ferred on the High Court by the Con­sti­tu­tion or any oth­er law. It re­quires no spe­cial ma­jor­i­ty, nor does it re­quire that the new court or courts en­joy the con­sti­tu­tion­al pro­tec­tions de­signed to en­sure the in­de­pen­dence of the Supreme Court. Ar­guably, the most im­por­tant pow­er of the Supreme Court in­her­ent in the sep­a­ra­tion of pow­ers and rec­og­nized both at com­mon law and by statute, is the pow­er of ju­di­cial re­view of ex­ec­u­tive ac­tion. It is the on­ly pro­tec­tion that cit­i­zens have against ar­bi­trary or un­law­ful state ac­tion. In some in­stances, it is the back­stop to the Ser­vice Com­mis­sions and will as­sume even more sig­nif­i­cance if the in­de­pen­dence of the Ser­vice Com­mis­sions is weak­ened. If the draft con­sti­tu­tion is adopt­ed in its cur­rent form, that pow­er can be sim­ply and un­cer­e­mo­ni­ous­ly stripped away.

Un­der the draft, the Chief Jus­tice and the mem­bers of the Ju­di­cial and Le­gal Ser­vice Com­mis­sion are all ap­point­ed by the Ex­ec­u­tive Pres­i­dent. Giv­en our po­lit­i­cal re­al­i­ties and the way in which its com­po­si­tion would be de­ter­mined, the fact that the House of Rep­re­sen­ta­tives must ap­prove these ap­point­ments hard­ly pro­vides a con­vinc­ing check, or at least one that is like­ly to fos­ter pub­lic con­fi­dence in the in­de­pen­dence of the ju­di­cia­ry. In fact, the Chief Jus­tice will cease to be a mem­ber of the Ju­di­cial and Le­gal Ser­vice Com­mis­sion al­to­geth­er.

Ser­vice Com­mis­sions were orig­i­nal­ly cre­at­ed for the ex­press pur­pose of in­su­lat­ing cer­tain pub­lic of­fices from po­lit­i­cal in­ter­fer­ence. Their com­po­si­tion and the process for the ap­point­ment of mem­bers are crit­i­cal in en­sur­ing the ful­fill­ment of that pur­pose. The na­tion has to de­cide whether we still want that. If there is some as­pect of that that is no longer work­ing then we can on­ly have a mean­ing­ful de­bate and con­sul­ta­tion if we iden­ti­fy it with clar­i­ty and then ar­tic­u­late ex­act­ly what we want to achieve and why we think it will be bet­ter. I am afraid that the ex­plana­to­ry notes to the draft Con­sti­tu­tion fall far short of that!

I fear that who­ev­er pro­duced this draft may not have served us as well as they might have, but the ju­di­cia­ry re­mains open to con­sul­ta­tion on the best way for­ward. May I re­it­er­ate, how­ev­er, that the process of de­vel­op­ing a new Con­sti­tu­tion is not mere­ly a mat­ter for ne­go­ti­a­tion be­tween the ju­di­cia­ry and the ex­ec­u­tive. Every cit­i­zen has a stake. OF course there will be some in­di­vid­u­als, groups or or­gan­i­sa­tions that will be bet­ter equipped to con­tribute to the de­bate and I hope that they will shoul­der that re­spon­si­bil­i­ty.

At the end of the day, what­ev­er form the con­sti­tu­tion even­tu­al­ly takes, there has to be on­go­ing con­sul­ta­tion and col­lab­o­ra­tion be­tween the ju­di­cial and ex­ec­u­tive arms of the state if the coun­try is to be run prop­er­ly, but nei­ther should at­tempt to set in­ter­nal pol­i­cy for or ad­min­is­ter the oth­er. As a con­crete ex­am­ple of how that col­lab­o­ra­tion might work, I could take the ex­am­ple of in­for­ma­tion tech­nol­o­gy. As we move to­wards mak­ing e-gov­ern­ment a re­al­i­ty, it is ob­vi­ous that pol­i­cy de­ci­sions will have to be tak­en on an IT plat­form that would best pro­vide a seam­less ser­vice and al­low the var­i­ous arms of gov­ern­ment to com­mu­ni­cate and share in­for­ma­tion. Col­lab­o­ra­tion will be nec­es­sary and it makes sense to share a ba­sic frame­work. How­ev­er, when it comes to what in­for­ma­tion is to be col­lect­ed with­in the ju­di­cia­ry and how it is to be col­lat­ed stored and who will have ac­cess to what, that must re­main the province of the ju­di­cia­ry. The ju­di­cia­ry is a nec­es­sary com­po­nent of the sys­tem of jus­tice but it is not an arm of the ex­ec­u­tive. Pol­i­cy de­ci­sions tak­en in ei­ther sphere will of course have im­pli­ca­tions for the func­tion­ing of the oth­er and a healthy work­ing re­la­tion­ship is nec­es­sary for the ef­fi­cient func­tion­ing of the whole jus­tice sys­tem.

I have been en­cour­aged by the cor­dial­i­ty and co­op­er­a­tion that has been the hall­mark of re­la­tion­ships be­tween the Ju­di­cia­ry and the Min­istries of Fi­nance, Pub­lic Ad­min­is­tra­tion, Na­tion­al Se­cu­ri­ty and the of­fice of the At­tor­ney Gen­er­al in re­cent times. I am there­fore not sure what it is that is not work­ing that we are try­ing to fix. If a Jus­tice Min­istry were to pro­vide a fo­cal point for com­mu­ni­ca­tion with the ju­di­cia­ry that would chan­nel all of those in­puts, then there should be no dif­fi­cul­ty, that is a mat­ter for the ex­ec­u­tive. What it can­not and should not do if we are to re­main true to the prin­ci­ple of sep­a­ra­tion of pow­ers, is to re­move the prop­er and in­de­pen­dent ad­min­is­tra­tion of the ju­di­cia­ry from the ju­di­cia­ry. As our Amer­i­can friends some­time say "if it aint broke, don't fix it!".

What is trou­ble­some about the cur­rent draft con­sti­tu­tion is that, in this re­gard, it rep­re­sents a re­ver­sal of the progress we have been mak­ing over the past two decades and a de­par­ture from in­ter­na­tion­al­ly ac­cept­ed norms in­clud­ing the La­timer House prin­ci­ples to which this na­tion has pub­licly sub­scribed.

I sin­cere­ly hope that noth­ing that I have said will be con­strued as a per­son­al crit­i­cism of any­one, in­clud­ing who­ev­er au­thored the cur­rent draft. How­ev­er, giv­en our propen­si­ty in this so­ci­ety to flavour com­men­tary with spec­u­la­tion about mo­tive and in­ten­tion there is some­thing I feel I must say.

We have an un­for­tu­nate ten­den­cy to shoot the mes­sen­ger in­stead of an­a­lyz­ing the mes­sage so let me be as frank as those who know me would ex­pect. One day, whether through choice, death, ill­ness or mere ef­flux­ion of time, I will demit of­fice. On­ly God knows when and He is in con­trol of that. It will be a re­lief as I crave a sim­ple life. Pow­er, pomp, sta­tus and flash­ing lights hold no al­lure for me and the bur­dens of of­fice are oner­ous. My sin­gu­lar in­ter­est lies in the op­por­tu­ni­ty to make a dif­fer­ence and to con­tribute to the na­tion­al good.

The of­fice of Chief Jus­tice car­ries with it the re­spon­si­bil­i­ty to speak out on oc­ca­sion in or­der to con­tribute bal­ance and ma­ture per­spec­tive to de­bate on mat­ters of na­tion­al in­ter­est par­tic­u­lar­ly when they im­pact up­on the ju­di­cia­ry and the ad­min­is­tra­tion of jus­tice gen­er­al­ly. This is one such oc­ca­sion. We are talk­ing about our con­sti­tu­tion! It is sup­posed to be a dis­til­la­tion of all the val­ues we hold dear, an ex­pres­sion of our hopes and as­pi­ra­tions for the so­ci­ety we want to cre­ate for the fu­ture. It there­fore be­hooves us all to think very care­ful­ly about this ex­er­cise and voice our opin­ions. We should not ab­di­cate that du­ty by leav­ing the 'heavy-lift­ing' to oth­ers. Any con­sti­tu­tion that is fi­nal­ly adopt­ed must be the prod­uct of our col­lec­tive thought and de­lib­er­a­tion and more im­por­tant­ly an ex­pres­sion of our col­lec­tive will. Our thoughts may be gar­nered by con­sul­ta­tion but on­ly if there is ac­tive par­tic­i­pa­tion from all sec­tors of our so­ci­ety.

In the end, we will have to con­sid­er what is the best mech­a­nism in our de­mo­c­ra­t­ic so­ci­ety for de­ter­min­ing the will of the peo­ple. There is a view that it is best ex­pressed di­rect­ly in a vote. It en­sures that the fi­nal prod­uct cor­re­sponds to our ex­pressed views. That which we specif­i­cal­ly ac­cept and adopt we are far more like­ly to re­spect and ho­n­our. May I re­spect­ful­ly sug­gest that se­ri­ous con­sid­er­a­tion be giv­en to that.

Ex­ten­sive con­sul­ta­tion has been promised. Lets us as a na­tion make it a mean­ing­ful and pro­duc­tive ex­er­cise. We can all learn and grow from such a process if we, in­clud­ing the ju­di­cia­ry, ap­proach it cor­rect­ly. Our con­sti­tu­tion af­firms that our na­tion is found­ed on the no­tion of the su­prema­cy of God. If that is so then the ob­ject of this ex­er­cise is to dis­cern His will. To those of us who dare to lead I can on­ly share the words of an anony­mous au­thor:

"I sought to hear the voice of God

I climbed the high­est steeple

But God de­clared "Come down again.....

I dwell among the peo­ple"

Fel­low cit­i­zens, stake­hold­ers! God has no voice un­less we speak.

May God bless our na­tion. This court now stands ad­journed.

Cap­tion


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