Without sounding too pontifical about it, one of Cayman’s great strengths is the stature, stability and competence of our judiciary. Trust in our court system, both civil and criminal, is an essential ingredient in the allure of these islands to investors, visitors, residents – indeed to all of us.
In far too many jurisdictions, the judicial branch of government has become practically indistinguishable from the political (meaning the legislative) branch. From India to South Africa, from Brazil to the United States – runaway judiciaries exceed their authority by making law, not simply interpreting and applying it to the cases brought before them.
Thankfully, that separation of powers has rarely, if ever, been eroded in the Cayman Islands – but we must be vigilant that our tripartite form of government – the executive, the legislative, and the judicial – remain in their proper balance. Such systems were designed, brilliantly so, to provide checks and balances to each other in a democratic system.
And yet, we are witnessing globally an arrogation of judicial power. For example, battle is being waged in Brazil between the political and judicial classes, with prosecutors and judges not only releasing a hailstorm of investigations and indictments against current and former political leaders, but also attempting to drum up public support for their cause on social media and in the press.
In the United States, the political strategy of enacting change by means of finding a sympathetic plaintiff and a friendly (or activist) judge is at least as old as the Civil Rights movement, but particularly egregious examples are found today in certain courts’ ongoing challenges to President Donald Trump’s executive order restricting travel to the U.S. from six Muslim-majority countries.
When the order first was enacted, a U.S. District Judge in Seattle, among others in New York and Boston, temporarily blocked the travel ban – an order that was later upheld by the most liberal (and most-overturned by the Supreme Court) federal bench in the U.S., the 9th Circuit Court of Appeals in California.
The executive branch issued a revised order, which was blocked by a federal judge in Hawaii and in a few other courts (still other judges voiced their opinion that the ban fell well within the powers of the presidency). The challenges were heard by the U.S. Supreme Court, whose ruling allowed the travel ban with minor modifications to take effect late last month.
Now, the same Hawaii judge who initially blocked Mr. Trump’s order is at it again – redefining (if not defying) the order of the Supreme Court to comport apparently with his own political propensities.
Even the U.S. Supreme Court itself has become largely a political body, with decisions falling along predictable – and political – lines, the liberal justices vs. the conservative. The lower courts have become even more politically polarized – never the intent of the authors of the constitution.
In Cayman, ironically, there is one area where the judiciary itself is suffering because of its lack of political participation. We are referring to the country’s dire need for a new courthouse. Judges, even the Chief Justice, simply do not have the “clout” to get the budgetary appropriation through the legislative process to build the new facility. (They came close in 2008, but the global financial crisis derailed that initiative.)
The case work of the courts also has increased dramatically in recent years (both in volume and complexity). Believe us, the learned and the wise of the Cayman bench work weekends to keep up with their workloads. And still it’s a challenge …
Decorum prevents judges from lobbying in their own behalf. They certainly cannot hire a public relations agency to make their case. But their needs are valid, and the evidence is both abundant and persuasive. Our court system needs additional resources.