GUYANA BAR ASSOCIATION LAW CONFERENCE
FEATURE ADDRESS ON THE INDEPENDENCE OF THE JUDICIARY
BY
ALBERT K. FIADJOE – PROFESSOR OF PUBLIC LAW
Some 16 years ago, I stepped foot on Caribbean soil. Ever since that day, wherever I go, people confuse my birthplace – Ghana – with Guyana. So, now that I am firmly on Guyanese soil, let me thank the Guyana Bar Association for bringing me home.
The story is told of a Professor from a famous university in England who was billed to deliver an important lecture in Manchester. Unfortunately for him, the football derby was on that day and Manchester United was billed to play Manchester City. When the professor arrived at the lecture hall he found only one person there. He proceeded to deliver his lecture in full to this lone listener, without any abridgement whatsoever. As he sought to leave the lecture hall, the lone listener turned around and said to him, “What do you think you are doing by walking away? Please come back”, he said, “I am the next speaker!”
The Guyana Bar Association has been thoroughly gracious, not only to present me with a full audience but also with some of the best legal minds that the Caribbean has produced. I am humbled by the awesome presence of you all. I wish to pay a special tribute to the judiciary of Guyana, not only for its immense contribution in helping to build a veritable Caribbean jurisprudence, but also for being a leading light in blazing the trail in Caribbean constitutional adjudication. Many complicated and extremely difficult cases have been ventilated through scholarly discourse in several judgments emanating out of Guyana. For me as a poor lecturer -and I mean literally poor- who must use these judgments as teaching material, I find that the judgments, especially of all the past Chancellors have been usually very, very long indeed.
Mr. President, Chancellor and members of the Judiciary, Distinguished Ladies and Gentlemen of the Bar, it is a pleasure and an undeserved honour to address this Law Conference. There is no gainsaying the fact that the architectural design of Commonwealth Caribbean Constitutions is premised on a central and pivotal role for the judiciary. The protection of our constitutional values has been expressly entrusted to the judiciary. In these parts, we take the independence of the judiciary for granted. And why not? Since the first Commonwealth Caribbean constitutions were written, judicially enforced fundamental freedoms have been enshrined in them as the bedrock of our values towards the creation of modern, strong and fair societies. So, the Preamble to the Constitution of Guyana speaks to protecting “human dignity” and upholding “the principles of freedom, equality and democracy”, among many other fundamental human rights and aspirational principles.
Across the
Atlantic, there is currently raging a fierce battle as to whether the rights of
British citizens are enforceable in law as a result of Britain enacting the
Human Rights Act of 1998 and signing the European Charter of fundamental rights
in October of this year. While the
British Prime Minister is of the view that the Charter is simply a “political
declaration” and not legally binding, the French President on the other hand
insists that the Charter would override national law. The President of the European Commission says that not only
should the charter give European judges the power to override British law, but
that it would. As a superannuated and
firm believer in Human Rights, I have no doubt that the Convention would have a
major impact. If our constitutional
history teaches anything, it is that lawyers and judges will exploit the
opportunities offered by the Convention to create new rights, just as our
courts here have been doing for over 30 years and more. So, we can be proud of the fact that in the
Commonwealth Caribbean, we crossed that Rubicon over the enforceability or
otherwise of our fundamental freedoms a long time ago. We can proudly proclaim
with Lord Hewart in his book entitled The
New Despotism:
“When for any reason or combination of reasons, it has happened that there has been lack of courage on the Judicial Bench, the enemies of equality before the law have succeeded and the administration of the law has been brought into disrepute.”
We can say with pride that we have traveled far and that judicial independence has meant a lot to us. But we cannot rest on our oars, for there is still a long way to go.
In this region, we are familiar with the basic constitutional safeguards which require that the State may not dismiss a judicial officer except for cause relating to infirmity of body or mind or stated misbehaviour; may not abolish the office whilst there is a substantive holder thereof; that judges’ salaries should be charged on the Consolidated Fund and that their conditions of office may not be altered to their disadvantage. Of course, I am aware of some disquiet against parts of our constitutions, which have been criticized for excluding the populace and the Bar from participating in the appointments of judges, for allowing too much executive influence over the appointment of judges in some territories, permitting extensions beyond the stipulated age of retirement and allowing acting appointments too frequently. Recently in the UK, it has been accepted that acting judges may lack sufficient independence from the executive to be regarded as sufficiently impartial to determine criminal or certain civil cases. A case in Scotland has recently found that the system of temporary sheriffs was in breach of the European Convention on Human Rights. As a result, acting judges in England would henceforth be appointed differently with a greater degree of security of tenure.
Those identified shortcomings notwithstanding, there is no gainsaying the fact that judicial independence as a principle, has served the Caribbean well. So, rather than deal with these well known constitutionally accepted truths, I propose to adopt a differentapproach and provide you instead with an eclectic cocktail of my views on non-traditional, but potentially deadly assaults and challenges to judicial independence. One way of assessing judicial independence is to examine the constitutional text. Another way is to follow the preferred approach of Sir Fred Phillips, who, in his book on Caribbean constitutions devoted a whole section to the independence of Caribbean judges through their seminal judgments. Today, I wish to don a different type of spectacles by adopting a dysfunctional approach. New global challenges mandate that we search for new remedies, using our collective capacity for adaptation and change to meet the exigencies and complexities of our time.
So, Mr. President, if I may, I would like to put my case in a geo-political context. Firstly, like the society around us, the world of legal practice and adjudication of disputes is undergoing phenomenal change. And this sea change has great import for the promotion of our economic and social well being. We are caught in a vortex of globalization and trade liberalization. Our laws cannot ignore these influences nor can the judiciary escape from them. While admitting that Caribbean governments are now a necessary part of the globalized economic octopus the world has become in this 21st century, it is equally true to say that globalization is also a system that has left too may losers, most of all the poor.
In a UN document entitled “A UN Call for Action”, this telling revelation is made of the Eastern Caribbean countries, an observation which no doubt holds true for Guyana as well and I quote:
“With very few exceptions, general living standards have declined since the late 1970s and early 1980s, with resultant increased pockets of poverty throughout much of the region. The impact of liberalization and other macroeconomic shocks has effected a period of low economic growth, deficiencies in the labor market and deterioration in the quality of social services. In addition, increases in crime and violence, retrenchment of workers, a drop in the real value of social insurance, social assistance and changes in family structures have contributed to the declining living conditions. The overall rate of unemployment in the Windward Islands is growing with women and youth being most acutely affected. In most parishes, women outnumber men in the ranks of the unemployed. Unemployment is also high among school-leavers aged 15-19”.
That is the sort of social milieu, which creates revolutions and, indeed, does test the limits of judicial independence.
Secondly, the equally compelling and unarguable point can be made that modern governments have virtually taken control of our lives from conception to the grave and even beyond. Sir Roy Marshall, one of our own, has also reminded us that “Parliament has lost its control over the executive at the same time as the executive has assumed greater control over our social and economic life. Administrators now grant or refuse licenses, permits, subsidies and similar privileges on an ever- increasing scale. And this regulation is augmented by programs carried out by government departments or statutory corporations, so that the welfare of the individual has come to depend more on his rights against the executive than his right against his fellow citizens”.
He continues with this very important observation:
[Judicial] review is therefore “regarded as essential, to ensure that the individual gets justice from the courts where he gets none from the administration. This is not surprising, for administrators lack the independence of judges, are more susceptible to political, ministerial and bureaucratic pressure, make most of their decisions in private, give no reason (unless required by statute to do so), do not always observe the rules of procedural fairness, and are inclined to subordinate the claims of justice for the individual to what they conceive to be the demands of public policy”. (2nd Anthony Bland Memorial Lecture 23-24 of CPL)
In far colder climes, Sir Cecil Carr was able to observe as early as 1941 that ‘ we nod approvingly when someone tells us that, whereas the State used to be merely policeman, judge and protector, it has now become schoolmaster, doctor, house builder, road-maker, town-planner, public utility supplier and all the rest of it”.
Both these statements are acknowledging the fact of the enormous growth in the nature and ambit of state power. The state has assumed an ever-increasing range of responsibilities. Through nationalization it controls most of the basic industries and the goods and services they supply. It runs a comprehensive system of social services providing benefits from just before the cradle (by way of pre-natal sevices) to the grave and in between it provides education, a health service, sickness benefits, unemployment benefits and old age pensions. Such enormous power must have profound implications for our traditional understanding of judicial independence.
Thirdly, the information technology poses peculiar challenges to the resilience of our societies. The Internet’s uncanny ability to create new networks and generate synergies has also sharpened our awareness of new and untested challenges to the legal order – e-commerce and Internet crimes, for example. These too have their ripple effects on the independence of the judiciary.
Fourthly, we now know about the proverbial complaints about the trial process:
1) Adversarial nature of the trial
2) Delay
3) Expense
4) Court overcrowding
5) Rising demands on scarce public resources
6) Escalating legal and emotional costs
7) An increasingly long and arduous litigation process
8) Inefficiency and popular frustration with the litigation alternative
These deficiencies in our adversarial trial system pose a serious direct threat to the notion of a fair trial and an indirect threat to judicial independence.
Fifthly, it is clear that the old methods of managing the business of courts can no longer withstand the demands and impatience of today’s world.
As Caribbean societies face the challenges of the present, more and very pressing demands are going to be made on the judiciary and the law. Hotly contentious issues such as the right to life, the fairness of the electoral process, crime prevention, gender issues, the protection of family values and the demands of the welfare state are just some of the problems, which the court will be called upon to deal with increasingly on a day-to-day basis. And by way of parenthesis, if I may say so, with respect to the electoral process, current events show clearly that our neighbors to the North cannot count and that their computers cannot punch either! In the kind of matrix where society is operating under great pressure, the courts become the final arbiters in resolving some very difficult choices. That is where confidence in the effective administration of justice becomes the yardstick by which the entire society is judged.
What should be our response to this onrushing tide of never ending but ever increasing challenges? The few random thoughts which I am about to share with you are in no order of substance, importance or even coherence. In fact, they may be likened to the Holy Roman Empire, which was said to be neither holy, nor Roman, nor even an empire. In attempting to provide some answers, I wish to use as my basic construct the civil trial system. My submission is that the civil trial system ought to aim at justice and speed. And in order to do so, there has to be a systemic change to reflect the following objectives-
In order to achieve these aims, three things ought to happen. Firstly, we need to change the present lawyer-driven litigation management process to a system of judge-driven case management. Secondly, we need to improve upon the court management process and thirdly, we need to raise the standards of the Bench and Bar.
Just across the seas from here in the OECS States, there is a quiet on-going revolution taking place on these very lines. So, let me say a few words about that revolution in the hoe that I may be able to link it with the topic of judicial independence. The systemic change, which is being advocated, requires a complete transformation in the culture of litigation, as we know it today. Under this system, it is the court and not the lawyer that assumes responsibility for the litigation before it. This change is also designed to water down the concept of adversarial litigation and trial by ambush. This imposes a duty of disclosure on litigants to one another as well as the court. This change also requires a paradigm shift in the ethical values of the bar from simply a duty to the client to a duty to both the client and to justice.
The case management system is also useful in filtering cases, identifying those that are susceptible to mediation and ADR processes and leaving them in that pigeonhole. At the case management conference, the case is prepared for trial and time standards are fixed, all within 90 days of the filing of a writ. Naturally, this system works best in the context of some form of automation and the use of technology and contemporary systems. Studies have shown that merely by improving management systems through the use of technology, there have been improvements in the quality of justice of between 50% and 75%. If we must leave those cases that of necessity ought to go to trial in the hands of the judges, then our primary concern must be the proper preparation of the Bench for that specialized role, to ensure that quality control standards for the Bench are attained or met and that the Bench remains accountable to the public to whom they are ultimately responsible. The Judge of today now has to manage the court professionally, must be courteous to litigants, must enforce time management deadlines and adopt a hostile attitude to adjournments. In this new dispensation, we expect that the courts would also be sensitive to the cultures of the society, the prevailing ethic of the society, as well as to hot button issues such as gender. In other words, the judge must be sensitive to the social context in which justice is to be dispensed. All of these require of the judge very high ethical standards, a very high level of professionalism and, of course, exposure to some minimal form of continuing judicial training.
I promised you an eclectic cocktail of recipes according to my taste. I now offer them to you. Firstly, Caribbean states must continue to insist on appointments of the highest quality to the Bench. Among the elements, which must go into a search for a high- quality judicial appointments must be the following basket of ideas, which the Attorney General of Australia once put forward for discussion in a Paper. Among his list of preferred qualities are:
Also, there is an increasing awareness of the need to involve lay participation and the Bar in the selection of judges. That is one very simple way in which civil society may feel an affinity with the judicial process which, after all, impacts on it in a most severe an direct way.
Side by side with high quality appointments must go a judicially inspired system of a voluntary Code of Ethics and Performance Appraisal. Therein lies the accountability of the judiciary to police itself.
There must also be overall improvement in physical facilities and infrastructure of the courts. As stated by E. George Green:
‘The surroundings in which the courts discharge their functions must convey to the public the majesty of the law. Squalid, dilapidated and decaying courtrooms; dark, dank and ill-ventilated chambers, do nothing to portray the exalted dignity of justice. Courts must be conducted in quiet, well-appointed, comfortable, secure, specially constructed rooms to which the public can be admitted and from which the public can be excluded at the will of well-trained and disciplined officers”.
In a way, all those points remain valid and, indeed important. But the next series of issues are, to me, collectively perhaps the most important for they go to the jugular of judicial independence in this day and age.
Judicial independence means the provision of an efficient and effective legal service the populace. We cannot begin to lay any claim to that independence when the judiciary is unable to buy into modern management concepts and technology. How much more would our judges be high-flying performers if through information and office technology they had judicious investments in processes such as document management systems, form-filling software, electronic documents and precedent banks? Again, increased connectivity such as networking among the judiciary and the Bar would allow access to resources such as reports and publications in a speedier and more efficient manner. In the UK, by means of information technology, a judge can discuss issues and exchange information and ideas on a closed website. Video conferencing is used in respect of training and in hearing of cases. Also technology is being used for filing proceedings, leading eventually to the paperless courts and the speedy disposition of cases. I submit that a lack of modern technology in the courtroom is an indirect threat to the concept of judicial independence.
Now, I touch on a subject of great importance. It has to do with the very sensitive subject of judicial training. I would like to submit with some force that if judicial independence must mean something beyond constitutional guarantees on paper, then at the very least it must mean the continuing ability of the judiciary towards self-improvement. That entails that judicial training ought to take center stage in any credible judicial policy formulation. We have made the point that the discipline of law is undergoing tremendous change. It is unrealistic to expect that the judge can find the time outside of his or her heavy workload to undertake self-tuition in order to be up-to-date.
As a general proposition, it is perhaps true to state that the average judicial officer, through no fault of his/her own, assumes office based on his/her professional experience, which invariably does not include expertise on taking of evidence, the analysis thereof and how to compose a written judgment. Most of such persons would have been truly exposed to the style of academic dissertation familiar to law schools, focusing more on jurisprudence than on equity and justice. The complex nature of today’s world demands that adjudicators be provided with the institutional opportunity, in an environment comfortable to their circumstances, to refresh their knowledge on conciliation methodologies in family and child custody disputes, treatment of white-collar crimes, and tax evasion techniques, to name a few pertinent areas. I am not calling on a march to the Law School of any university. On the contrary, I am calling for the formal establishment of an institution run by judges for judges. Such is the case of the Judicial Studies Board of the UK. In the initial stages, there were fears that such an institute might interfere with the independence of the judiciary. As the history has established, that fear was groundless. The judges have called on outside assistance of academics and practitioners as they have sought fit. Apart from keeping the judges up to date, it has been found that the institution has also helped to alleviate the sensation of isolation and loneliness, which goes with a judicial role.
In the OECS, there is in place a Judicial Education Institute, which, despite the lack of official direct funding, operates as a committee of the Chief justice. The important thing is that it is an institute of judges for judges. It calls on outside assistance as it sees fit. It has extended its training programs to registrars and magistrates. This is to be welcomed. Here too, I make bold to submit that the absence of a judicial training facility is a potential threat to judicial independence.
MR President, in the inimitable style of Lord Denning where sentences may be constructed without verbs, I say, two more points.
There is no way there can be an independent judiciary without an equally efficient and effective Bar, for the Bar must walk hand-in-hand with the Bench in the dispensation of justice. Any credible form of judicial and legal reform must work in partnership with the Bar. Indeed, the Bar has to move in the same direction and pace of the Bench. Just as for the Bench so the Bar too must undergo an important paradigm shift in culture, inculcating in its practices the new culture and duty to justice, the maintenance of high ethical standards, prudent financial management, proper litigation management and continuing legal education.
All of this is to acknowledge that the constitutional guarantees of fair trial to the citizen is truly honored when we can proudly say that we have a judicial and legal system that is impartial, independent, competent, efficient and effective and, equally important, also seen to be so by the public.
Well, I must apologize to you if I have over-run my span and if I have given the impression that though I have talked much I have in fact said very little. The nub of what I wanted to say all along was that the true test of judicial independence rests with how much support the people are prepared to give to it, especially in time of crisis. To adapt a well-known phrase, the people deserve the judiciary they get. I must apologize – in the true vein of a lawyer- that it took me 25 minutes to do so.
November 23, 2000