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#1 Aug 22, 2019 4:34 pm

New Historian
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Judicial Independence: Does it Really Exist?

Independence of the judiciary, in the Caribbean as well as in the wider world, exists within legal and constitutional statutes of the land, but does it exist in actual fact? Judicial independence can be defined as “The ability of courts and judges to perform their duties free of influence or control by other actors, whether governmental or private” The Commonwealth Caribbean all share a common legal regime, which includes provisions to ensure judicial independence, to ensure that the judiciary remains independent. In Commonwealth Caribbean Constitutions, mechanisms are in place to limit the direct participation of politicians in the selection of judges. The appointment of judges is done by the amalgamation of the Head of State (the President or Governor General) and an independently appointed Judicial and Legal Service Commission.

The Constitution of Trinidad and Tobago states that the Chief Justice, who is also the President of the Court of Appeal, shall be appointed by the President of the Republic “after consultation with the Prime Minister and the Leader of the Opposition”. Given that the Prime Minister is the head of the ruling political party, could this therefore be said to be truly “independent”? Although the PM may be duty-bound to “consult” with the Leader of the Opposition on the selection of the Chief Justice – the top legal functionary in the nation – the reality is that the PM is under no obligation to take anyone else’s views into account: it is his/her choice and his/her’s alone.

Judicial independence means that judges and other functionaries of the legal institutions, must be free of “external influences”, whether personal, political, religious or business related. In small countries this is difficult to achieve in practice, because the individuals that make up the legal profession will be drawn from a small pool of talented – or privileged – people: the middle classes. Childhood friends, cousins, ex-school chums, all will sooner or later come to be judged. Can this be truly “independent”? Judges are required to recuse themselves if he or she has a personal link to the case being judged, but how far is that link supposed to extend? Direct relations only, or in-laws? Old friends? The simple fact is that in some particularly small jurisdictions, in some legal cases it could be nearly impossible to find a local judge who isn’t in some way “connected” to the issue at hand.

Judicial independence also includes the conduct of the nation’s judges in their professional and personal lives. Right here in Trinidad and Tobago there is legal turmoil in the legal profession over the actions of the sitting Chief Justice, Ivor Archie. This involves an alleged corrupt link between Archie and one Dillion Johnson, and favouritism showed by Archie in allowing twelve applicants to obtain subsidized houses from the National Housing Corporation. Following a subsequent attempt on Dillion’s life, he was granted asylum in the United Kingdom where he said that he feared for his life due to his links to Archie and his known homosexuality. Judges in the UK are now investigating Chief Justice’s private life, and in an unprecedented move the Law Association of Trinidad and Tobago has filed a motion of no confidence and a legal case against the CJ. The legal profession clearly does not believe that their Chief Executive Officer is “independent”.

We should not feel so bad about our challenges in achieving true judicial independence – it doesn’t exist anywhere. In America the Supreme Court, the highest court in the land, is “all about law, and all about politics”. The recent fiasco over the appointment of Judge Kavanaugh clearly demonstrated that the appointment of Supreme Court Judges has little to do with their legal ability and lots to do with their political views. Nowhere is this more evident than in one of the many issues that divides America unmistakably along political lines: abortion. Because Kavanaugh is anti-abortion, nothing else matters: not the (credible) accusations of his (many) accusers, not his own temper tantrums while under oath. The USA judiciary is definitely NOT “independent”.

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#2 Aug 22, 2019 9:35 pm

Expat
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Re: Judicial Independence: Does it Really Exist?

Fortunately the American judicial system isn't the be all and end all.

There are failings with all systems, to err is human, but some at least try to be fair.

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