Protection Judicial Integrity
Judicial independence is an important constitutional principle and practice. Barbados has righty been criticised for the worrisomely close relationship between the judicial and the executive branch due to the 1974 constitutional amendment which allows the Prime Minister to appoint Judges. Critics have since argued, that the amendment subjects Judges to Prime Ministerial interference which undermines judicial independence. Conceivably, it is these long-standing criticisms that have led this administration to propose constitutional developments regarding the island’s judicial system.
Reforms insufficient
With an amendment to the Supreme Court and Judicature Act, government has proposed that a Judicial Appointments Committee (JAC) be established to recommend to the Prime Minister appointees for Judges. Across the Commonwealth, Judicial Appointment Committees have been used to insulate the Courts from blatant political appointments thereby enhancing judicial independence.
Yet despite the proposed JAC, concerns about judicial independence can still be raised. With the exception of a member from civil society, the committee is to consist of personnel such as the Chief Justice and former judicial appointees. Furthermore, excluding the Chief Justice, the Prime Minister is responsible for the appointment of the remaining committee members. Therefore, it would be reasonable to assert that Prime Ministerial powers of appointment allow for the placement of personnel that may be susceptible to the office of the Prime Minister. This reproduces the very concerns about genuine judicial independence that the amendment seeks to address.
Excessive executive involvement
Other notable developments regard the criteria and the process that govern the removal of Judges. In addition to the inability to discharge their functions, and misbehaviour, the criteria for removal can now be a delay of more than six month for a judgement. Furthermore, as with judicial appointments, concerns can be raised regarding Prime Ministerial involvement. This is the case as the amendment proposes that for the first time, a Prime Minister after consultation with the Chief Justice, can advise the Governor General to begin the process for the removal of a Judge. Prior to the proposed amendment, it was the Chief Justice that would be the trigger as they would first consult with the Prime Minister. Therefore, the amendment would permit the Prime Minister to also be a trigger for the removal of a Judge. Although they would not determine the outcome, the Prime Minister’s involvement and potential intent are concerning as they conflict with the principles of judicial independence.
Reducing executive involvement
If Barbados does in fact aim to improve judicial integrity, effective methods that can reduce executive involvement are required. Ultimately, the JAC could be responsible for judicial appointments and be the trigger for investigations into a Judge for removal. Such an approach would be superior if there is a greater sense of independence and diversity with the appointment of committee members. Achieving this will require that the committee’s composition is drawn from a wide range of constituencies as to resist capture from executive interest. Therefore, efforts at reform could propose that civil society, academic, corporate, labour and legal organisations, be responsible for the composition and appointment of members for the JAC. A similar approach is practiced by the Legal and Regional Judicial and Legal Services Commission, as the process ensures a greater degree of judicial independence than that of Prime Ministerial involvement.
Ultimately, changes to Barbados’ judicial system are welcomed. Yet, the reforms cannot consolidate more power in the office of the Prime Minister to close the circle of the 1974 constitutional amendments, by giving the Prime Minister the power to trigger the removal of a Judge. Principles such as judicial independence, rule of law and separation of powers are not academic exercises. It should concern us all when these principles come under fire from the executive and legislative branches of government, despite their well-meaning intentions.