Chief justice case dismissed at Privy Council

Issues must be raised in Grand Court

A case involving constitutional questions in the operation of the Cayman Islands judiciary was dismissed Thursday by the Judicial Committee of the United Kingdom’s Privy Council, which advised the matter should – at least initially – be decided before the Cayman Islands Grand Court.  

The council committee, announcing its decision to the public Thursday, noted it was not ruling on any merits of the specific claim, which pitted Cayman Islands Chief Justice Anthony Smellie against Cayman Islands Governor Duncan Taylor and the territory’s Judicial and Legal Services Commission.  

The first issue brought before the Judicial Committee involved the reappointment of Grand Court Justice Alexander Henderson, whose term expired in June 2011. Mr. Henderson had asked Governor Taylor in December 2010 for an extension of his term on the Grand Court bench through 4 November, 2014 – the day before Mr. Henderson would reach 70 years of age.  

Governor Taylor sought advice from the Judicial and Legal Services Commission on the matter. The commission stated that there was “no basis upon which it is necessary in the interests of the administration of justice that Justice Henderson should continue in office until 4 November, 2014”.  

The governor stated later that he was “content to go along with that advice”.  

The second issue raised before the Judicial Committee was the publication of a complaints procedure in relation to the Cayman Islands judiciary.  

The focus of the issue appeared to be around the role of the Judicial and Legal Services Commission after it investigated a complaint against a judge or a magistrate.  

According to the complaints procedure, the commission can either decide no disciplinary action is required; that the case can be disposed of properly with a lesser sanction than removal of the judge; or that the case does call for the exercise of such powers of disciplinary control short of removal from office. 

“The chief justice complains to the commission and the governor about these provisions on the ground that the constitution did not permit the governor to impose ‘disciplinary sanctions short of removal’,” the Judicial Committee’s ruling stated. “The commission replied … that they were ‘not seeking to pre-judge the question whether or not the governor has powers of disciplinary control short of removal.”  

Essentially, the Cayman Islands Judicial and Legal Services Commission stated that the complaints procedure was intended to leave those questions open to resolution in future cases.  

In a statement released Thursday, Justice Smellie indicated that it was important for the issues to be resolved quickly. 

“The matter needs to be resolved now, before difficult cases start to come before the court requiring an interpretation of the Constitution Order and the Bill of Rights,” Chief Justice Smellie said, opining that resolving the cases will rest on the unquestioned independence and impartiality of judges and the avoidance of any perceptions to the contrary.  

“Any potential for aspersions about the partiality of judges must be removed now, before it arises in other cases,” he said.  

The Privy Council’s Judicial Committee made clear that it was not seeking to resolve the merits of either question raised by the chief justice. 

“However, even taken together, it is quite satisfied that they do not enable the chief justice to cross the relatively high hurdle which must be crossed before a section 4 petition will be substantively entertained, if the issues it raises are ones which can be considered by the Grand Court in the normal way,” the ruling stated. “It will almost always be preferable for matters of constitutional importance, such as those raised in this case, to be argued out at first instance.  

“This enables the facts and issues to be clarified in proceedings that are better suited for that exercise than a tribunal of final appeal.” 

According to Section 4 of the UK Judicial Committee Act, 1833: “It shall be lawful for [Her] Majesty to refer to the said judicial committee for hearing or consideration any such other matters whatsoever as [Her] Majesty shall think fit …” 

“In these circumstances, while it fully understands why the chief justice has sought to bring these issues before the judicial committee … the board humbly advises Her Majesty that this petition should be dismissed.”  

The chief justice’s statement continued: “The government of the Cayman Islands and the Constitution have wisely preserved the power to refer issues to the Privy Council in London making it possible to bring difficult and important issues such as these before an expert tribunal for resolution. The need for this will always be rare, but it is a very important safeguard of the Constitution of the Cayman Islands and therefore of the rights of persons appearing before the courts. I am therefore disappointed that it seems we must now first go through the protracted stages before the local courts as the Privy Council was not prepared to rule on the substance of the matters at this stage.” 

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  1. So the Chief Justice is at odds with the Privy Council, the Governor and the Judicial and Legal Services Commission? Where is the Attorney General who is supposed to represent the interests of the people in such cases?

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