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#BTColumn – When the courts break

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by Garth Patterson

“Rockabye Justice on the treetop, when ill winds blow her scales will rock, when the courts break, her scales will fall, and down will come Justice, sword, scales and all.”

In the perpetual struggle to defend this ethereal notion of “Justice”, the Court is the Sentinel, the constitution its armour, and principles of natural justice the standard that it bears. In every civilised society, the legal systems that underpin it are built upon a foundation infused with principles of fairness, equality before the law and justice.

The bodies charged with responsibility for the administration and delivery of justice must, in order to achieve those objectives, adhere to fundamental and immutable tenets that tend to promote respect for, confidence in and obedience to the rule of law and the legal systems that support it.

Judges, magistrates, arbitrators, and other decision-making bodies discharge their functions within an institutional framework that is unsustainable without the scrupulous recognition and protection of the rights of every citizen to equal and impartial justice delivered by fair and independent arbiters within a reasonable time.

The Barbados Constitution enshrines the natural justice precepts of fair hearing and freedom from bias, political or otherwise, and provides that every person who is charged with a criminal offence, or whose civil rights and obligations are being determined, shall be entitled to a fair hearing within a reasonable time by an independent and impartial court or authority established by law.

Principles of independence, impartiality, and expedition, therefore, are inextricably weaved into the fabric of the
judicial robes. Those clothed with authority of a judicial nature must dispense justice in a manner that is above reproach in the view of reasonable, fair minded and informed persons; and must seek to ensure that justice is not only uniform and transparent, but also apparent, swift, consistent, and predictable.

By a leaked draft of what will likely be the lead opinion in the case of Dobbs v. Jackson Women’s Health Organisation, the US Supreme Court has signaled its malicious intention to abort its landmark decisions in Roe v Wade, which was decided in 1973, and Planned Parenthood v Casey, decided in 1992.

The Court ruled in Roe that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. The anticipated ruling is momentous not only for its far-reaching effects, principally in reversing women’s constitutional rights that had been affirmed by the Court and have held firm for the last 49 years, but also for the foul political stench that heralds it.

The Supreme Court is populated by a 6-3 majority of justices who were appointed by Republican Presidents (the last three appointed by Donald Trump), all of whom had run their political campaigns on an anti-abortion platform, and who had promised to appoint judges whose principal qualification was a deep commitment to the reversal of Roe.

If the majority of the Supreme Court have their way, then it will be one of the clearest recorded examples of political interference in the judicial process and will deal a fatal blow to the system of justice in the US, which had already been tottering on the brink of collapse in the wake of a spate of controversial decisions involving police killings of unarmed black people. Bias, in any form, is insidious and anathema to the principles that underlie all judicial systems.

“Equality before the law” – these words are emblazoned in stone above the entrance to the US Supreme Court. Yet, in one fell swoop, it has declared war on women’s rights, all in the name of advancing the agenda of angry, white, old, male politicians, eager to thrust their grubby fists up women’s reproductive systems with the single-minded goal of delivering their long-promised, deeply political, anti-abortion spawn.

“It has affirmed that women (predominantly black and brown women) are less than equal, at least in the eyes of the law. The anticipated (dreaded) ruling should be a clear warning to judicial systems around the globe that even the most revered and robust court systems can bend or break under the weight of political influence.

And when that break occurs, it will open the floodgates of anarchy, because modern civilisation is founded on the concept of the rule of law, whose integrity depends on the existence and proper functioning of a judicial system that is universally accepted as fair and just.

When trust in the judicial system is eroded or undermined by extraneous, political influences, then the rule of law will fail, justice will fall and mob rule, self-help and vigilantism will thrive. Our court system in Barbados is, unquestionably, vulnerable to such external shocks.

Section 81 of our Constitution provides that the “Chief Justice and other Judges of the Supreme Court shall be appointed by the President, by instrument under the Public Seal, on the recommendation  of the Prime Minister after consultation with the Leader  of the Opposition.”

The President has no discretion in the matter and, by virtue of section 34G of the Constitution, must act in accordance with the recommendation of the Prime Minister.

The Prime Minister must consult with the Leader of the Opposition before making the recommendation, but is, constitutionally, under no obligation to follow any advice or suggestion made by him/her. Moreover, as there is currently no Leader of the Opposition, the Prime Minister effectively has the power to direct the President to appoint a Chief Justice and any judges, without reference to any other person.

The tenure of judges is also the subject of political determination. While judges are appointed until they attain 65 years (70 years in the case of the Chief Justice), their tenure can be extended by up to two years by the President, acting on the recommendation of the Prime Minister.

As with the appointment of judges, the Prime Minister is also involved in the process of investigation of the Chief Justice or a judge leading to their removal from office.

If the Prime Minister advises the President that the question of removing the Chief Justice from office for inability to discharge the functions of his office, for misbehaviour, or for delay of more than six months in delivering a judgment, ought to be investigated, then the President must refer the matter to a tribunal to investigate.

Similarly, the Chief Justice must consult with the Prime Minister before advising the President to investigate a judge for inability, misbehaviour, or delay.

For all practical purposes, therefore, the Prime Minister wields almost unfettered discretion and power in the appointment, extension, or removal of judges, and this translates into significant control.

With such enormous potential for political influence over the process of appointment, extension or removal of judges, the notion of the independence and impartiality of our judges is illusory.

Without immediate reform, then it is only a matter of time before decisions of our courts will be questioned and fidelity to our system of laws will be undermined.

To her resounding credit, Prime Minister Mottley is alive to this reality and has proclaimed it as one of her goals to shepherd amendments to the Constitution to remove the level of political influence, imagined or real, that may be exerted over the judiciary and, by extension, the judicial process.

Given the state of our political landscape, this should be an urgent priority of the current administration.

Reform of this critical significance should not be left to languish at the feet of the constitutional reform committee, whose broad and ambitious remit to produce a brand new Constitution will not likely bear fruit any time soon.

We ignore the unmistakable warning sent by the imminent reversal of Roe at our own peril.

Garth Patterson Q.C. is a Senior Partner of Lex Caribbean. He was called to the Bars of Jamaica and Barbados in 1987 and the Bars of New York and St Lucia in 1990 and 2011 respectively.

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