Constitution issues

Editor’s note: Mr. McField, Billy Adam and Dennie Warren have been asked by the Caymanian Compass to address issues concerning a new constitution for the Cayman Islands. While the three men will be writing columns, letters from others on this issue are welcomed.

The Peoples Progressive Movement Party in its Explanatory notes to its vision and proposals for constitutional reform propose that ‘All our judges and magistrates, in future, be appointed by a new Judicial and Legal Services Commission, headed by the chief justice and comprising also the president of the court of appeal, one member each from the Cayman Islands Bar Association and Law Society, and two non-lawyer members appointed by the governor and recommended by the premier and leader of the opposition, respectively’.

The commission would also consider whether there should be divisions of the court.

Whilst I agree with the PPM proposal in principle, I do have issue with the proposed appointees from the CBA and LS of which I will develop as I go along.

Section 49B(2) of The Cayman Constitutional Order 1972 as amended, states that judges of the court of appeal shall be appointed by the governor, acting in his discretion by instrument under the public seal, in accordance with such instructions as he may receive from Her Majesty through a secretary of state.

Section 49I (2) of the 1972 Order as amended, states that the judges of the grand court shall….be appointed by the governor, acting in his discretion, by instrument under the public seal.

Courts such as the summary court, drug court, juvenile court and coroner’s court are subordinate to the grand court and the grand court has supervisory jurisdiction over them by Section 49M of the 1972 Order as amended.

Governors have been appointing the judiciary in the Cayman Islands since about 1798. Michael Craton writes in Founded upon the Sea, that in 1798 Senior Magistrate William Bodden and four other magistrates were appointed in the Cayman Islands by Lord Balcarres, the Governor of Jamaica.

Craton states that in 1831 Governor Belmore, the governor of Jamaica, appointed five magistrates in the Cayman Islands to hold office along with three others, John Drayton, Robert Watler and Waide Bodden. Among the five newly appointed magistrates was a wealthy merchant named Nataniel Glover who was an American citizen and had a lucrative business at Bodden Town. However Nataniel Glover’s appointment was later disallowed by the colonial office because he was not a British citizen.

Before 2005 in the United Kingdom, judges were appointed in theory by the Queen but in practice by the Lord Chancellor. The Lord Chancellor holds the highest judicial office in the UK; he is a cabinet minister and ex-officio chairman of the House of Lords. The Constitutional Reform Act 2005 removed the appointment of judges from the Lord Chancellor. The 2005 Constitutional Reform Act established a judicial appointment commission to appoint UK judges.

As one Member of Parliament, Mr. Fraser, put it ‘Judges should be more representative of the community that they serve and…. judges are not masters of the community they are its servants’.

So, now in the UK the Lord Chancellor no longer has the exclusive power to appoint judges. However, he can, under the 2005 Act, issue guide lines on procedure of the judicial appointment commission for selecting judges, but he must consult with the lord chief justice before doing so.

The Jamaica Constitution S111 (1) (2) provides for judges to be appointed by a judicial service commission consisting of the chief justice of Jamaica as chairman, the president of the court of appeal, three appointed members each of whom must be appointed by the governor general on the recommendation of the prime minister after consultation with the leader of the opposition.

In the United States, federal judges including the Supreme Court judges are appointed by the president with advice and consent by the senate. Such appointments can be often classified as favoured or bias appointments because too often such appointees will be party members. Other state and county judges are otherwise appointed or elected.

Section 94 of the Virgin Islands Constitution Order 2007 also prescribes for a judicial and legal serviced commission for judicial appointments.

The Gibraltar Constitutional Order 2006 Section 57 also provides for a Judicial Service Commission for Judicial appointments.

The Turks and Caicos Islands Constitution Order 2006, Section 81 brought into effect a judicial service commission for the appointment of the judiciary with the governor of that territory.

These constitutional orders reflect the modern relationship between those territories and the United Kingdom as it should be today on judicial appointments.

That is why I do agree with this PPM proposal in principle. What I do object to, which is really not an objection but a suggestion and a counter proposal, is that the two members proposed from the CBA and the LS should not be lawyers actively practicing before the Court but instead should be retired CBA and LS members.

The independence of judges in the UK and in the Cayman Islands is preserved by the doctrine of separation of powers.

Therefore the judicial functions properly belong to the court; if they are vested in any administrative or other authority they are quasi-judicial. But the courts must exercise review and supervisory jurisdiction by reason of the sanction of law.

The independence of judges also means that judges must be independent of and immune from outside influences.

Objective determinations mean that judges must be free from outside influence and that any attempt to influence a judge in his judicial functions or obstruct or interfere with the administration of Justice must be prevented.

The protection of the courts from such influences – be they from whatever party is in power, opposition or individual – must be secured by court sanction.

The fortification of the judges’ independence will become more significant if judges are to have review jurisdiction over decisions of the highest constitutional office holders in a modern constitution.

Independence of judges must be ensured by a modern-restatement of the Act of Settlement 1707.

Executive and judicial functions must never be placed in the same hands.

A judicial legal service commission under the PPM proposals will need to remember the words of Judge Frank Furter, when he said, ‘The most prized liberties themselves presupposes an independent judiciary through which these liberties may be as often have been vindicated, when in a real controversy such as is now here an appeal is made to law, the issue must be left to the judgment of courts and not the personal judgment of one of the parties. This principle is a postulate of our democracy.’

Finally, we should never move away from the established principle that our judges service and tenure do not depend on the winning or losing of political parties at the polls or the whims and fancy of any governor but that their service and tenure are predicated on good behaviour.

We must not forget in all our constitutional debates and deliberations that our judges should not be appointed by a process in which the confrontational viciousness of party politics is often played, because our judges in which our rights rest as a last resort today are entirely outside the cut and trust of rivalry and counter rivalry between the majority and the minority and the power of the executive cabinet.