Chief Justice Ivor Archie delivered his annual speech during Wednesday's opening of the law term. The first part of his speech was published on Thursday and the second yesterday. Following is the final and edited part of the CJ's speech.
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. 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.
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. 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 sometimes say "if it ain't 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. 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.