Our philosophy is incorporated in our vision statement of which this may be a convenient time to remind you. It is:

“.. to provide an accountable court system in which timeliness and efficiency are the hallmarks, while still protecting integrity, equality and accessibility and attracting public trust and confidence”

We accept our responsibility and are putting our house in order. At the last meeting of judges held in July we adopted a 120-day time limit for the delivery of reserved judgments. The code of judicial conduct is now substantially complete and will be formally adopted and circulated for public information before the end of the year. This is the standard to which we will publicly agree to hold ourselves accountable and which you are entitled to expect and demand of us.

But we need independent and effective court administration to make the separation of powers and judicial independence a reality. Effective Court Administration provides the judiciary with the necessary device to protect judicial independence.

Effective and independent court administration promotes public accountability and public trust and confidence. Promoting the courts’ accountability in the proper sense (effective administration) helps to “repel (the) improper threats to independence” that concerned the American Founding Fathers.

It is my hope that as we contemplate constitutional reform, it will be clearly understood that the only way forward is to devise mechanisms that promote institutional strengthening in those areas for which each institution is responsible, and therefore accountable. It goes without saying that there can be no effective and accountable discharge of responsibility without the power to control the relevant processes and the deployment of the available resources that fuel them. And what is the judiciary’s responsibility? The current Lord Chief Justice of England, Mr Justice Igor Judge has put it this way:

“In a democratic country, all power, however exercised in the community, must be founded on the rule of law. Therefore each and every exercise of political power must be accountable not only to the electorate at the ballot box, when elections take place, but also and at all times to the rule of law. Independent professions protect it. Independent press and media protect it. Ultimately, however, it is the judges who are guardians of the rule of law. That is their prime responsibility. They have a particular responsibility to protect the constitutional rights of each citizen, as well as the integrity of the constitution by which those rights exist”

It is against that background and understanding that I must confess to some concern when I read some of the provisions of the draft constitution that refer to the judiciary. They do not meet the objectives that have been otherwise publicly articulated and, in fact would, if passed, take us in the opposite direction. In my respectful view they stem from a fundamental misunderstanding of our role and function and have disturbing implications for judicial independence. I refer in particular to clauses 121 to 125, 136 and 142. The misunderstanding lies in the assumption of a false dichotomy between the judiciary’s judicial and administrative functions and the assumption that one can be independently exercised without the other. The danger lies in the potential to gradually and systematically strip the judiciary of its independence and the citizens of their protection through ordinary or subordinate legislation requiring no special majority.

The point is best illustrated by the posing of a rhetorical question. If you were one of the parties to a lawsuit, would you feel comfortable in knowing that the party on the opposite side could have access to the judge’s chambers, could control the filing of documents and the keeping of all the records in the matter, the selection of the judge who would handle the matter, the scheduling of courtrooms and other resources, the composition of the judge’s support team including his or her research assistant, all the information, technology and security associated with the matter and the court, the judge’s leave and travel approval, training, reading material and personnel records?

You might with some justification entertain great apprehension that the scales could be tilted against you. Well all of those things are part of what Court Administration is about and that is the challenge to which the current draft would expose us. That fact is that in every criminal matter before the courts and in a large percentage of the civil matters, the executive arm of the state is on one side and individual and otherwise powerless citizens are on the opposite side. How, pray tell, can a constitution meaningfully provide for the judiciary to be independent only in the exercise of its judicial functions? And what is one to make of clause 136 which provides that the Chief Justice shall be responsible for the general administration and business of the Supreme Court (no mention here of the magistracy) and yet provide in a later subsection that the Minister of Justice shall have control of administrative matters relating to the judiciary as may be prescribed? Prescribed how, where and by whom? How is the Chief Justice to be responsible, and therefore accountable, for that which he does not control? The matter is not helped by the reference to consultation. Anyone who understands constitutional language knows that he who merely has to be consulted can be safely ignored. The Permanent Secretary for the Judiciary who will be appointed by the executive President and responsible for the day to day administration of the judiciary will report to the Minister of Justice and not to the Chief Justice. Outside of the construction of buildings, which is the only pertinent example cited thus far, it is difficult to think of any other aspect of Court Administration that could be safely devolved from the judiciary without impinging on its independence. Constitutions are not necessarily places for attempting to place exhaustive lists. As we have seen, Court Administration evolves. Must we amend the Constitution every time there is a change? It would be a lot simpler to acknowledge explicitly in the Constitution the principle of independence of the judiciary in its administrative and adjudicative functions if we agree on it.

But it does not end there. Perhaps the most worrisome clause is clause 125, which gives Parliament the power to confer on any court any part of the jurisdiction and powers conferred on the High Court by the Constitution or any other law. It requires no special majority, nor does it require that the new court or courts enjoy the constitutional protections designed to ensure the independence of the Supreme Court. Arguably, the most important power of the Supreme Court inherent in the separation of powers and recognised both at common law and by statute, is the power of judicial review of executive action. It is the only protection that citizens have against arbitrary or unlawful state action. In some instances, it is the backstop to the Service Commissions and will assume even more significance if the independence of the Service Commissions is weakened. If the draft constitution is adopted in its current form, that power can be simply and unceremoniously stripped away.

Under the draft, the Chief Justice and the members of the Judicial and Legal Service Commission are all appointed by the Executive President. Given our political realities and the way in which its composition would be determined, the fact that the House of Representatives must approve these appointments hardly provides a convincing check, or at least one that is likely to foster public confidence in the independence of the judiciary. In fact, the Chief Justice will cease to be a member of the Judicial and Legal Service Commission altogether.

Service Commissions were originally created for the express purpose of insulating certain public offices from political interference. Their composition and the process for the appointment of members are critical in ensuring the fulfillment of that purpose. The nation has to decide whether we still want that. If there is some aspect of that that is no longer working then we can only have a meaningful debate and consultation if we identify it with clarity and then articulate exactly what we want to achieve and why we think it will be better. I am afraid that the explanatory notes to the draft Constitution fall far short of that!

I fear that whoever produced this draft may not have served us as well as they might have, but the judiciary remains open to consultation on the best way forward. May I reiterate, however, that the process of developing a new Constitution is not merely a matter for negotiation between the judiciary and the executive. Every citizen has a stake. Of course there will be some individuals, groups or organisations that will be better equipped to contribute to the debate and I hope that they will shoulder that responsibility.

At the end of the day, whatever form the constitution eventually takes, there has to be ongoing consultation and collaboration between the judicial and executive arms of the state if the country is to be run properly, but neither should attempt to set internal policy for or administer the other. As a concrete example of how that collaboration might work, I could take the example of information technology. As we move towards making e-government a reality, it is obvious that policy decisions will have to be taken on an IT platform that would best provide a seamless service and allow the various arms of government to communicate and share information. Collaboration will be necessary and it makes sense to share a basic framework. However, when it comes to what information is to be collected within the judiciary and how it is to be collated stored and who will have access to what, that must remain the province of the judiciary. The judiciary is a necessary component of the system of justice but it is not an arm of the executive. Policy decisions taken in either sphere will of course have implications for the functioning of the other and a healthy working relationship is necessary for the efficient functioning of the whole justice system.

I have been encouraged by the cordiality and cooperation that has been the hallmark of relationships between the Judiciary and the Ministries of Finance, Public Administration, National Security and the office of the Attorney General in recent times. I am therefore not sure what it is that is not working that we are trying to fix. If a Justice Ministry were to provide a focal point for communication with the judiciary that would channel all of those inputs, then there should be no difficulty, that is a matter for the executive. What it cannot and should not do if we are to remain true to the principle of separation of powers, is to remove the proper and independent administration of the judiciary from the judiciary. As our American friends sometime say “if it aint broke, don’t fix it!”.

What is troublesome about the current draft constitution is that, in this regard, it represents a reversal of the progress we have been making over the past two decades and a departure from internationally accepted norms including the Latimer House principles to which this nation has publicly subscribed.

I sincerely hope that nothing that I have said will be construed as a personal criticism of anyone, including whoever authored the current draft. However, given our propensity in this society to flavour commentary with speculation about motive and intention there is something I feel I must say.

We have an unfortunate tendency to shoot the messenger instead of analysing the message so let me be as frank as those who know me would expect. One day, whether through choice, death, illness or mere effluxion of time, I will demit office. Only God knows when and He is in control of that. It will be a relief as I crave a simple life. Power, pomp, status and flashing lights hold no allure for me and the burdens of office are onerous. My singular interest lies in the opportunity to make a difference and to contribute to the national good.

The office of Chief Justice carries with it the responsibility to speak out on occasion in order to contribute balance and mature perspective to debate on matters of national interest particularly when they impact upon the judiciary and the administration of justice generally. This is one such occasion. We are talking about our constitution! It is supposed to be a distillation of all the values we hold dear, an expression of our hopes and aspirations for the society we want to create for the future. It therefore behooves us all to think very carefully about this exercise and voice our opinions. We should not abdicate that duty by leaving the “heavy-lifting” to others. Any constitution that is finally adopted must be the product of our collective thought and deliberation and more importantly an expression of our collective will. Our thoughts may be garnered by consultation but only if there is active participation from all sectors of our society.

In the end, we will have to consider what is the best mechanism in our democratic society for determining the will of the people. There is a view that it is best expressed directly in a vote. It ensures that the final product corresponds to our expressed views. That which we specifically accept and adopt we are far more likely to respect and honour. May I respectfully suggest that serious consideration be given to that.

Extensive consultation has been promised. Lets us as a nation make it a meaningful and productive exercise. We can all learn and grow from such a process if we, including the judiciary, approach it correctly. Our constitution affirms that our nation is founded on the notion of the supremacy of God. If that is so then the object of this exercise is to discern His will. To those of us who dare to lead I can only share the words of an anonymous author:

“I sought to hear the voice of God

I climbed the highest steeple

But God declared “Come down again…..

I dwell among the people”

Fellow citizens, stakeholders! God has no voice unless we speak.

May God bless our nation. This court now stands adjourned.