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The independent judiciary in the commonwealth caribbean

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. 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.

  • 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;
  • 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;
  • I am humbled by the awesome presence of you all;
  • In these parts, we take the independence of the judiciary for granted.

Many complicated and extremely difficult cases have been ventilated through scholarly discourse in several judgments emanating out of Guyana. 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.

Introduction

In these parts, the independent judiciary in the commonwealth caribbean take the independence of the judiciary for granted. 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.

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.

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. But we cannot rest on our oars, for there is still a long way to go.

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.

  • Both these statements are acknowledging the fact of the enormous growth in the nature and ambit of state power;
  • 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;
  • The state has assumed an ever-increasing range of responsibilities;
  • Many complicated and extremely difficult cases have been ventilated through scholarly discourse in several judgments emanating out of Guyana;
  • That is the sort of social milieu, which creates revolutions and, indeed, does test the limits of judicial independence;
  • In most parishes, women outnumber men in the ranks of the unemployed.

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.

  • As a superannuated and firm believer in Human Rights, I have no doubt that the Convention would have a major impact;
  • Fourthly, we now know about the proverbial complaints about the trial process;
  • When the professor arrived at the lecture hall he found only one person there;
  • 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;
  • I am humbled by the awesome presence of you all;
  • A case in Scotland has recently found that the system of temporary sheriffs was in breach of the European Convention on Human Rights.

President, if I may, I would like to put the independent judiciary in the commonwealth caribbean 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.

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. That is the sort of social milieu, which creates revolutions and, indeed, does test the limits of judicial independence.

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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. Administrators now grant or refuse licenses, permits, subsidies and similar privileges on an ever- increasing scale. He continues with this very important observation: 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.

Constitutional Guarantees

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.

These too have their ripple effects on the independence of the judiciary. Fourthly, we now know about the proverbial complaints about the trial process: