CCJ President stresses importance of quality judiciary

Aug 25, 2012 News

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President of the Caribbean Court of Justice (CCJ) Right Honourable Sir Dennis Byron says there are those in the Caribbean who feel that regional judges lack autonomy, backbone, integrity and morality. This, he emphasised, is the result of the judiciary being influenced and corrupted by politicians.
The notion was expressed at the Barbados Annual Judicial Retreat 2012 earlier this month at the Supreme Court Complex, Whitepark Road, Bridgetown, Barbados.

“Until Judges exhibit their willingness to stand up to big business, and stop bantering to politicians we the people cannot have confidence in them,” Sir Dennis stressed.
Noting that this judgment may be harsh and inaccurate, the CCJ President said this represents the perception of a significant portion of the public, and this must be dealt with.
Underscoring that the public deserves some explanation about the performance of the judiciary, since it renders a service to the public, he said it is customary for service organisations to engage in customer relations.
“In my view confidence in anything is not automatic.  It has to be earned or perhaps learnt. This learning has to be continuous, because as each new generation comes of age it has to develop confidence. This means that the judiciary has to continuously provide information to the public about its performance. It must be our concern to make The Court the most trusted and legitimate institution in our affairs,” Sir Dennis explained.
He added that judicial temperament is not a matter of personality, “it is defined by the American Bar Association as having compassion, decisiveness, open-mindedness, sensitivity, patience, courtesy, freedom from bias and commitment to justice”.
“Judges must show respect for the litigant and their attorneys by treating everyone with dignity. We must be polite and courteous. We must listen carefully to the testimony presented and the arguments of counsel. We must show that we genuinely care about the matter being presented.  We must convey the attitude of doing our best to decide the case fairly on the evidence presented and on the applicable law.”
Sir Dennis further highlighted that when constitutional or statutory law supports the position of an unpopular litigant or group, judges are required to uphold the law in favour of the minority.  We have to recognise that sometimes differing interpretations are possible, for ambiguous law is still the law.
He said it is unrealistic to expect that judges can discern meaning uninfluenced by personal or political experience.  But it is these cases that make the fair and independent judge indispensible to the ultimate triumph of the rule of law.
“In small communities the standard of judicial behaviour and accountability ought to be much higher than in large societies where the judges are largely anonymous. In a small community, the judge is always under public scrutiny. He or she is always recognised as the judge. Therefore the standards of behaviour on and off the bench have to be continuously high.  The judge has to be like Caesar’s wife, that is to say, above suspicion.”
Advising Judges on how that status could be achieved, Sir Dennis said the law would be corrupted if interest groups, politicians, powerful or wealthy private citizens or public opinion could intimidate a judge into interpreting a law to their liking.
“The judge must be as independent as is humanly possible.  Judges must have the character, and the backbone to be independent enough to resist external efforts to influence inappropriately their decision making. It is also important that the judiciary as an institution is independent enough to resist encroachments from the other branches of government that could place the judiciary – and the decisions its judges make – under the control of the political branch. On this point the adequacy of judicial salaries, security of tenure, budgets, and working relationships with the other branches of government, among other concerns, are critical to the judiciary’s capacity to preserve its institutional integrity.”
He noted that Judges occupy the role of umpires and their credibility turns on their neutrality. “To preserve their neutrality they must neither prejudge matters that come before them, nor harbour bias for or against parties in those matters.”
Sir Dennis said it is scientifically established that everyone, including judges, has unconscious biases.
“It is therefore very important that judiciaries expose their judges to training in the social context of their adjudicative function. There is a well-developed curriculum and expertise of training in this area.   Therefore judges are required to recuse themselves not only when the judge has a personal bias or prejudice concerning a party, but also when a judge’s impartiality might reasonably be questioned. Appearances matter, because the public’s perception of how the courts are performing affects its confidence in the judicial system.”
He added this is critical, because the judiciary is not directly accountable to the electorate, and thus is more vulnerable to public suspicion.
“If the public loses faith in a judiciary, the obvious solution will be for the executive or the legislature to intervene to the detriment of judicial independence and the rule of law that judicial independence makes possible.
“This has recently occurred in Guyana. In that country, due to a perception of persistent delay in judgment delivery the legislature passed legislation regulating the time that judges must take to deliver judgments, and providing for a disciplinary process which involves the parliament. I do not support the involvement of the legislature in judicial affairs but can we demand that this unsatisfactory state of affairs is revoked unless we can also say that the judiciary has itself introduced internal regulatory processes to address unacceptable performance standards?” the CCJ President questioned.
“The public should realize that judicial independence is not a privilege of the judge; its manifestations are not simply perks of office. Judicial independence is a right of the citizen. It is the way in which the constitutional guarantee of fair and impartial justice is honoured.  Therefore the citizen should cherish and fight for it, just as the judge must exhibit it at all times.”
He however noted that judicial independence must have its limits.
“While we do not want judges to be dependent on any individual or group that might impair their capacity to apply the law fairly and without favoritism, neither do we want judges to exercise power arbitrarily.  Judicial independence must be tempered with judicial accountability.  This idea must not be misused in the service of those who would obliterate judicial independence and the rule of law by intimidating judges to reach results that are popular with the public. Accountability should be defined more narrowly, to serve the principles of a good judicial system.”

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