A GUY'S VIEW

We live in an imperfect world. Thankfully, while never attaining perfection, men have been able to design ameliorating systems that help to lift our systems of governance out of the Stone Age and give us a chance at fairness in the resolution of disputes. 

 

There are always three sides to a story, especially when there is a dispute. Disputing parties present their cases, and an independent arbitrator, usually in the form of a judge or magistrate, determines which side is successful. 

 

Anything which compromises the independence of the arbiter potentially compromises the entire judicial process. To try to minimise this eventuality, efforts are made to protect the senior judiciary from challenges to their independence. 

 

An independent judiciary is central to a fair system of governance. In granting independence to its colonies, England required that each one of them adopt a written Constitution based on the colonial power’s common law system. An independent judiciary has, therefore, been a part of all of these countries’ system of governance.

 

Judicial independence has been realised through the principle of separation of powers. This principle is at the heart of our system of government. In the Jamaican case of Hinds & Others v R (1975) 24 WIR 326 (PC), the London Privy Council said that this principle is synonymous with the Westminster model which has been inherited by Caribbean jurisdictions.

 

The separation of powers doctrine dictates that the Legislature, the Executive and the Judiciary operate independently of each other. The only truly independent arm of this trinity is the judiciary.

 

Section 63 of the Constitution states that the executive authority of Barbados rests with Her Majesty. She, however, does not execute any authority in Barbados. Her formal powers are delegated. Her Majesty’s authority may be exercised through the Governor General or his subordinates. 

 

In reality, from a practical point of view, the Cabinet sits at the apex of the Executive. However, the Cabinet is drawn from the Legislature. To assert that the Cabinet is independent of the Legislature, or vice versa, is not a serious position to espouse.

 

Laws are made by the Legislature, but the Executive is the organ which develops, drafts and presents those laws to the legislature for enactment. Later, other segments of the executive implement those laws. Nonetheless, only the judiciary may determine the efficacy of those laws.

 

The dicta coming out of the Hinds case established that even where a Commonwealth Caribbean Constitution does not expressly provide for Separation of Powers of the Executive, Legislature and Judicature, the doctrine of separation of powers still applies. 

 

It is implicit in the very structure of a Constitution based on the Westminster Model that judicial power must be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Constitution. The separation of powers doctrine is an elaborate mechanism for protection of the judiciary. 

 

Barbados is a constitutional democracy. Section 1 of the Constitution declares its primacy in the following terms: “This Constitution is the supreme law of Barbados and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.” 

 

Since laws are made by a combination of the Legislature and the Executive, it falls to the Judiciary to determine when ordinary laws run afoul of this constitutional doctrine. 

 

In small societies, it is not easy to speak truth to power. The judiciary cannot be cowed by this practice, therefore, democratic societies go to great lengths to insulate the judiciary from political and other influences.

For example, section 79H of the Constitution provides that, “A Judge may be removed from office only for inability to perform the functions of his office, whether arising from illness or any other cause or for misbehaviour, and shall not be so removed except in accordance with such provisions as are prescribed by law.” Only the judiciary can determine whether this responsibility has been discharged in a particular case.

 

There is no other entity in a Commonwealth Caribbean jurisdiction which benefits from the security of tenure enjoyed by members of the higher judiciary. This protection is essential for the preservation of a fair system of governance, for they must feel free to exercise their judgement without fear or favour.

 

Judges in Barbados have found in favour of litigants who have brought cases against the Government for as long as one can remember. As far as I know, no judge on our bench has ever been too intimidated by the Government, or any arm of the Government, to decide a case other than as the judge sees fit.

 

An appeal system is built into our judicial system because judges are human and will make mistakes. When mistakes are made, recourse may be had to the appeal process. Persons who are dissatisfied with a decision are free to exhaust the system of appeal, subject to the depth of their pockets. 

 

There has never been a time in our modern history when a judge was bound to deliver a decision which was inconsistent with the facts before him or her. It would be unheard-of madness for any member of the legislature or executive to approach a judicial officer in an attempt to influence a decision. 

 

We have all seen judgements with which we did not agree, but this has never been interpreted as the result of the judicial officer having no choice in the matter but to return that decision. And this interpretation has never been inferred because it is not reflective of Barbados’ reality.

 

Were we to ever reach that stage, it would mean that all that we now celebrate about our country would have failed. Efforts to undermine our institutions notwithstanding, that Barbados is not on the horizon.