Harrison-Henry

The relationship between the judiciary and the executive has come in for scrutiny by members of the legal fraternity. While acknowledging that the Constitution makes provisions to secure impartiality and independence, lawyers argue that there is room for greater protection of an independent judiciary.

Arlene Harrison-Henry, a former president of the Jamaican Bar Association and the current chairman of the Independent Jamaica Council for Human Rights, suggests that a pool of funds be set aside to further secure the independence of the judiciary.

A.J. Nicholson, the former Attorney General and Justice Minister, told The Gleaner that perceptions that the judiciary lacks independence could be suitably addressed by establishing a pool of funds to be entrusted to the chief justice.

Nicholson was quick to refer to similar arrangements governing the Caribbean Court of Justice (CCJ). He said legislation would have to be enacted to facilitate this process.

The issue of the funding of the judiciary is a sore point for Harrison-Henry.

"After 47 years of Independence, it is time that the judiciary has its own budgetary allocations to administer," she declared.

Code of conduct

She also cited the need for a judicial code of conduct. Harrison-Henry bemoaned the fact that the judiciary is still dependent on the executive arm of Government for the supply of basic materials such as paper, ink and other essential resources.

But human-rights activist, Yvonne McCalla-Sobers contends that constitutional provisions for the establishment of a special fund will, in and of itself, not be adequate to insulate the judiciary "in a country that seems to look on bias as a class norm and as a political norm".

According to McCalla-Sobers, "society expects the judge to act like 'backra', and the court often seems like the bastion of the plantation.

"The judge sits above everyone else, and people have to bow to the judge as if to British royalty ... I once saw a chief justice threaten to lock up someone because she shook her head while he was speaking," McCalla Sobers said.

She suggested that perceptions of bias in the courts against persons accused of certain crimes may be addressed by measures such as making courts-rooms more citizen-friendly places where people can feel reasonably welcome if they are not offenders, and feel assured of fair treatment if they are defendants.

"Until the courts appear more accessible to people, street justice will thrive and crime figures will increase, to the country's great loss," McCalla-Sobers warned.

Both Nicholson and Harrison-Henry appear to be thinking along similar lines with respect to eradicating perceptions of impartiality among members of the judiciary.

Justice Reform

Nicholson suggested that the role of the Judicial Services Commission could be expanded. Harrison-Henry noted that this suggestion is in keeping with recommendations of the Jamaica Justice Reform Task Force in June 2007, which stated that "independent judicial appointment committees or commissions with a broader membership than the current Judicial Services Commission should be established to solicit receive and review applications".

Harrison-Henry argued further that the appointment of judges should take place through an open, democratic and transparent process, drawing on the best of the legal profession, without bias against and without favour towards any.

"The outcome sought is to guarantee that the person selected possesses the highest professional skills and integrity."

She conceded that the independence and impartiality of judges, individually and institutionally, are guaranteed by elaborate provisions relating to security of tenure of judges.

"This is done by a constitutional arrangement whereby judges are paid from the Consolidated Fund," she said. "Neither can the emoluments, terms and conditions of service of a judge be altered to his disadvantage during his term in office."

Harrison-Henry pointed out that a judge of the superior court can only be removed from office for inability to discharge the functions of the office as a result of infirmity of body or mind or for misbehaviour.