Some of the Caribbean region’s most senior judges are in the Cayman Islands this week to discuss a draft law that governs the appointment, discipline and removal of judges.
The three-day Commonwealth Secretariat consultative meeting on the Judicial Services Commission Model Law kicked off on Monday, with opening remarks from Mark Guthrie, legal adviser to the Commonwealth Secretariat.
“At the heart of the model law is the principle of judicial independence,” he said. “Judicial independence is one of the intrinsic elements of the rule of law. The rule of law is at the heart of democracy. Without it and without judicial independence, there is no prospect of citizens being able to secure their rights. Equally the rule of law is essential for economic development. Without an independent judiciary there can be no investor confidence.”
Mr. Guthrie said the model law would contain “fair and transparent procedures” for the appointment of judicial officers, as well as procedures for “exercising judicial discipline in all circumstances, ranging from minor infringements to those which might merit removal from office.”
A draft of the law, drawn up following recommendations made at previous consultations, is under consideration by the judges.
Cayman’s Chief Justice Anthony Smellie told the delegates in his welcome remarks that the discussions on the model law would be “an involved and challenging undertaking.”
Anticipating that there was bound to be some disagreement among delegates about the composition of a Judicial Services Commission and its responsibilities, Chief Justice Smellie said, “I do not believe there can any longer be debate that this function must be assigned to an independent duly authorized body like a JSC. This is of course, provided that the appointment process is carried out in a manner that is ever mindful of the importance of judicial independence and security of tenure.”
The draft law also deals with the issue of discipline and sanctioning of judges.
“Apart from discipline by way of the ultimate sanction of removal, it has long been established that the judges should be responsible for disciplining themselves,” Chief Justice Smellie said. “This is the system that still appertains in most places in the Commonwealth and has worked well, it must be assumed, because the judges have shown that they can be relied upon to govern themselves.
“Indeed, the need for extra-judicial intervention, even for the most serious of matters justifying removal, has been perhaps most remarkable over the years for its rarity, than for any other reason.”
Pointing to increased calls for transparency and more immediate accountability from the public sector in the information age, the chief justice commented, “[T]he universally accessible blogosphere and social media have become not only the platforms of the justified but also the bully pulpits of the disgruntled and misinformed.”
He pointed out that judges and magistrates carry out their “demanding and difficult duties in open court, in the full glare of public scrutiny.”
The chief justice urged those present at the consultation meeting to be “very mindful of the dangers of over-intrusion upon independence” of the judiciary.
He acknowledged that there was a lack of public sympathy for judges. “It seems that so far as the public is concerned, the judges are better treated than most, so what do they have to complain about?” he said.
He added, “The public, feeling a lack of warmth because of the perceived distance of the judges, is typically unsympathetic and the political directorate will, of course, keep its fingers on the public pulse.”
He proposed that one of the objectives of the meeting should be to dispel concerns about “judicial aloofness, to sensitize the public to a better understanding of what it is judges do in their name, and why it is so important that the judiciary is properly supported to carry out its responsibilities.”
The consultations began last year in Zambia, and continued in June in Kuala Lumpur, Malaysia, and in September in Wellington, New Zealand, and are due to conclude in Cayman, Mr. Guthrie said.