By Emmanuel Joseph
The government’s chief legal advisor has backed the head of the judiciary’s criticism that six-decade-old laws could undermine judicial independence.
Attorney General Dale Marshall on Thursday voiced his full support for Chief Justice Patterson Cheltenham’s harsh condemnation of colonial-era laws that were retained by the 1966 Independence Constitution as “historical errors” weakening the judiciary’s self-governance.
The outgoing chief justice earlier this week appealed to fellow judges to back him to lead the “battle” to see these laws “cut out”. Cheltenham deemed as discrepancies laws that judges must apply to the executive branch of government for leave, retirement and budgetary powers.
“As head of our judiciary, a Chief Justice must be vigilant about those matters that have the potential to undermine judicial independence. Sir Patterson is therefore right to point out any such issues which he considers present in our legal structures,” Marshall told Barbados TODAY.
The AG pointed out that because the issues have been described as historical, that makes it clear “they have their genesis from as far back as our independence constitution.”
“I am aware that he has presented these concerns to the Constitutional Reform Commission, and I have no doubt that they will be given consideration,” he said.
However, Marshall contended that his administration has made the most far-reaching changes concerning the preservation of judicial independence in the country’s history when it changed how judges are appointed.
The attorney general argued that in 2019, the Mia Mottley administration amended the Supreme Court of Judicature Act to provide for the establishment of a Judicial Appointments Committee and to require candidates for judicial office to apply for posts and to be subjected to a rigorous screening and interview process.
“That committee then makes recommendations to the Prime Minister for judicial appointment. The report of the Committee must also be laid in Parliament. The committee advertises our vacancies across the entire Commonwealth,” he said.
Marshall explained that before this process was put in place, “the post of judge was entirely the gift of [the] political class”.
Speaking at the opening of the Commonwealth Secretariat Symposium on the Latimer House Principles at the Lloyd Erskine Sandiford Centre on Monday, Sir Patterson said he hoped the participants would take full advantage of the opportunity to voice serious concerns affecting the judicial branch.
The head of the judiciary said: “Historically, the Chief Justice, where there’s an application for leave from a member of the judiciary, sends that letter to the then governor-general, now the President for approval. I’m completely and deeply opposed to it because it makes absolutely no sense. Whoever is the Chief Justice is the head of the judiciary, and that person must know better than anyone else when the requirements should be given and when they should be modified, and the decision should stop with the Chief Justice. To go to the executive is an interference. It is a historical error that has been perpetuated, and it needs to be cut out completely.
Chief Justice Sir Patterson Cheltenham. (HG)
“There’s no person better equipped than the Chief Justice and his support staff about the granting of leave,” he added. “And by support staff [I mean that] if you’re from the Criminal Division, it would be the head of the Criminal Division. If you’re from the Family Division, it would be the head of the Family Division. If you’re from the Civil Division, it would be the head of the Civil Division.”
Cheltenham also outlined a similar situation when a judge wanted to apply for an extension upon reaching retirement age. Under the Constitution, a High Court judge retires at age 65 while a Chief Justice or Justice of Appeal retires at 70. Both can apply for a two-year extension.
“That should never be in anyone’s constitution because it puts you into the playbook of the executive. If you have an active case against the government at the time, it means that the judge has to be wondering if I rule to the left, maybe I will not get the extension; if I rule to the right, which I don’t think I should go, I’ll probably get the extension. No judge should have those conflicting emotions about the case, and that should also be changed. I’m hoping that in the newest version of the Constitution, those powers will be given to whoever is the Chief Justice of the day so that he/she will have a discussion with the judge who has applied.”
He insisted that “no politician should have a say in that, because it compromises the integrity of the judicial system straight to its core and again I’m unapologetic and stringently opposed to that”.
“[However,] it’s no politician’s fault; that came with the Constitution in 1966 . . . This is a fault line that came through and fault lines have to be corrected, and that one is an urgent need.”
Sir Patterson also complained of a lack of resources in the Office of the Chief Justice and departments that report to the office. He said on numerous occasions, he and other staff had to get documents printed at private businesses as there was no printer in the office.
This issue, he said, was because the Chief Justice does not control the judicial purse.
emmanueljoseph@barbadostoday.bb
