Judicial Independence as an Indispensable Feature of the Rule of Law and Democracy: Implications for the Commonwealth Caribbean

• Author: Arif Bulkan
• Pages: 199-224

Judicial Independence as an

Indispensable Feature of the Rule of

Law and Democracy: Implications

for the Commonwealth Caribbean

Arif Bulkan

1. Introduction

Although the Commonwealth Caribbean is notable among the countries

of the former British Empire for the stability of its institutions and the

levels of accountability in government, like every generalization this one

too is subject to exceptions. In many, if not all of the territories, there have

been occasions following political independence where constitutionalism

has been threatened – sometimes dramatically as in Grenada and



as newly independent governments have tested the limits of their power.

Resulting tensions with educated and informed populations are most

    

the outcome of which is obviously dependent on the degree to which

judges are able and prepared to scrutinize both legislative and executive

acts and thereby hold governments to account. The mechanisms by

which judiciaries have been insulated against interference and how

these actually operate in practice are therefore crucial, as they impact

          

and, by extension, on the measure of constitutionalism that exists in a

society.

A judiciary is, obviously, only as good as its individual members, but

the general level of independence depends not only on the individual

judges themselves, but also on the conditions under which they operate

          

been described by Allen SJ as the ‘institutional dimension’ of judicial

independence, as distinct from the individual dimension which relates

      1 Both dimensions, however, are

         

constitutions, which can be broadly categorized as (i) the procedures for

1. R v Jones (2007) 72 WIR 1 (SC Bah) 4 [10].

200

Transitions in Caribbean Law

selecting judges, (ii) the conditions under which the judiciary operates,

and (iii) the jurisdiction of the courts themselves.

But there is a broader and somewhat elusive issue, namely whether

these written provisions comprise the total of the constitutional guarantee

of judicial independence, or whether they are simply manifestations of

a deeper, underlying philosophy or natural moral order. This chapter

will show that the bare constitutional provisions have often not been

enough to achieve their stated goals but have been subject to evasion



the constitutionalization of human rights norms in the Commonwealth,

Professor Albert Fiadjoe unearths a gap between ethos and literalism,

concluding that the ‘mere re-statement or absence of human rights



of human rights.’2 Another distinguished commentator, Professor Keith

Patchett, has made similar observations, attributing the disconnect

partly to the lack of autochthony in the norms that were formulated in

the independence constitutions. In the process of constitution-making,

Patchett argues, the drafters failed to consider whether the ‘underlayer’

necessary for the effective operation of these norms was present.3

An independent judiciary is key in the context of these realities, for

though itself partly unaccountable, the judiciary is an acknowledged

bulwark against executive excess and in this way can hold politicians

to account. But as with the itemization of human rights norms and

standards, there are limits to what the text itself can accomplish by way

of securing an independent judiciary, as will be demonstrated below.

It is here that the true potential of implicit constitutional norms is

most evident, for where the text is lacking, resort to the constitution’s

underlying values can help to promote the independence of the judiciary

– the latter being vital to secure the ultimate goals of democracy and

adherence to the rule of law.

2. Procedures for Selecting Judges

Procedures for selecting judges are fairly standard across the region,

with only minor variations among individual territories. Generally,

appointments are made by the Head of State acting on advice, but it

2. A. Fiadjoe, ‘Human Rights and Comparative Constitutions – A Non-Traditional View’ (paper

presented at a conference in Mahwah, New Jersey, USA, June 1990 on Human Rights and

Comparative Constitutions).

3. K. Patchett, ‘The Legal Inheritance of the Smaller Commonwealth States’ (1989) 8 Commonwealth

Jud J 16.