“Judicial independence – what are the risks”. The following learning objectives have been identified: i.
That an independent and effective judiciary is fundamental to economic development and social stability. Delay is a major threat to judicial independence and to economic development and social stability and must be stamped out by the judiciary.
ii. In keeping with international standards, an independent judiciary is based on institutional arrangements and the character of the judges. iii. Judicial independence as a concept guarantees the right of the citizen to a fair and expeditious trial. It will be distinguished from separation of powers, a concept that provides checks and balances between the three independent branches of the same government to prevent abuses of power. iv. The risks experienced in relation to the role of the executive in fixing the remuneration of judges. Discussion illustrated by two cases (2): The Republic of Bangladesh, Secretary, Ministry of Finance, Government of Bangladesh vs. Hossain and others (Civil Appeal No 79 of 1999) by the Hon. Mustapha Kamal C.J.; and the Canadian case of Provincial Court Judge’s Association of New Brunswick v New Brunswick Minister of Justice et al [2005] 2 S.C.R. No. 47.
v. The risks to judicial independence are most often classified as tensions between the judiciary and the executive, but discuss other risks and remedies including those related to the judiciary and the legal fraternity. vi. Does judicial independence apply equally to all judicial officers having regard to differences in constitutional and legislative provisions relating to Magistrates throughout the region? vii. Discuss the risks caused to judicial independence through acting appointments to the judiciary in relation to the following: i. Temporary assignments for specific issues such as back log reduction 1|Page
ii. the training and probationary service iii. Failure to appoint the Head of a Judiciary for more than a decade viii. The risks to judicial independence caused by who controls the administrative arrangements of the judiciary: inevitably an area of tension between the judiciary and the executive: a.
Can efficiency and effectiveness of the court system be guaranteed if the Chief Justice does not have sufficient control over administration?
b. The justice sector includes service providers in all three branches of Government how should collaboration be managed? c. should recruitment, discipline and management of support staff come under a separate service commission (e.g. the Judicial Service Commission) and not the Public Service Commission? ix. The significant risks to judicial independence if adequate funding and resources are not provided for the judiciary. a. While the state of the economy is a factor that must influence the actual amount of money that is available that is not usually an acceptable explanation for the poor resources allocated to the judiciary. Should there be an objective standard that is measurable, so that there is a requirement to allocate a specified percentage of the revenue to the judiciary? b. The number of judges, court rooms, support staff and necessary facilities for efficient discharge of judicial function must be related to the volume of work that the courts must address: studies have revealed that inadequacy of court personnel and infrastructure is a major factor in the delay of the court process, and the growing backlog. c. Alternatives that could provide solutions to the funding issue of the court. While it is necessary to be mindful of affording access to justice, is it time to conduct a
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business study to determine some relationship between the cost of the services provided by the courts and the fees that are paid? d. The Trust Fund experiment for funding the CCJ has demonstrated that it is a viable system. Should this be attempted here? x. Delay is a major risk to judicial independence. if we define judicial independence as the right of the citizen to fair and timely resolution of disputes, then delay in the judicial process is a major risk to independence. Lengthy Pre-trial detention is declared by UN as most serious human rights abuse of our times. xi. The steps that have already been commenced to address the issue of delay which include a. code of ethics: the establishment of a Judicial Education Institute (“JEI�) for continuing education. b. Additional steps that need to be taken -The Establishment of a system of measurable performance standards backed up by court technology, including efiling and case management solutions. xii. The risks caused by disciplinary proceedings in relation to the Judiciary and security of tenure: a. Compare the disciplinary procedure and options with that of Bar and look at statistical comparisons b. If there are no disciplinary issues very good, but if there are, the failure of the judiciary to address them creates risk that other branches of government will take action. For example, Guyana passed law giving Parliament status in adjudicating on judicial misconduct for delay in delivering judgments. Thus, a major risk is that if the courts do not address this issue of discipline, judges may become subject to the other branches of government. xiii. Insufficient accountability poses a threat to judicial independence.
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a. Judges are immune from suit for actions taken in their judicial capacity. So, the question is asked what recourse is open to litigants who have suffered loss as a result of the wrong doing in the litigation process? xiv. Apart from the litigants, delay also affects the legal profession: to what extent is the earning capacity of lawyers affected? Does this contribute to financial improprieties? To what extent does the bar have a responsibility in reducing delay? Is this an ethical or professional obligation as well as a business opportunity? reducing delay will impact favourably on judicial independence and the confidence of the public in the judiciary. xv. Unjust public criticism of judiciary is another risk to judicial independence. a. The public has been commenting on the issue of political interference with judicial decisions. And there are other criticisms emanating about the judiciary. b. Traditionally the courts and judges have remained above the fray and not engaged in discussion with detractors. This has been facilitated by the tradition that other institutions, such as the AG and the Bar Association or associations of judges would speak up on behalf of the judiciary. To what extent is the silence of the Bar a risk to judicial independence? c. Has the time come for the court to start speaking for itself on these issues? xvi. The issue of regionalism and shared resources for improvement of the justice delivery. Does APEX provide opportunity for the judiciary and legal profession to contribute to redress risks to judicial independence?
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