Judges to manage themselves under constitutional change

| 16/08/2016 | 33 Comments
Cayman Islands Grand Court judges

Cayman Islands Grand Court judges

(CNS): The chief justice and the president of the Court of Appeal will now be the post holders who to keep judges in line during the day-to-day running of the courts. According to the governor’s office, a minor amendment to the Cayman Islands Constitution passed this week, requested by the governor and supported by both the premier and the opposition leader, was laid in the UK parliament last month to increase the retirement age of judges from 65 to 70 and to transfer the disciplinary control over judges away from the governor.

The governor, on the advice of the Judicial and Legal Services Commission, remains responsible for the recruitment of the judiciary and serious disciplinary issues regarding complaints or the potential dismissal of members of the bench, however the general management of the local judiciary will now be down to the current chief justice, Anthony Smellie, and the management of the judges serving on the Court of appeal will be handled by Sir John Goldring, the current CICA president.

The request by Governor Helen Kilpatrick for the change was recently made to the FCO’s overseas territories minister, who agreed to the amendments, which came into force by proclamation on Friday, 12 August.

Editors Note: The following clarification has been provided by judicial officials regarding the change:

1. The Governor’s role relates to initiating a judicial tribunal of inquiry through the Judicial and Legal Services Committee (JLSC) in relation to a serious complaint that could result in removal from office. The tribunal reports its findings to the Privy Council if the findings could result in removal. The Privy Council reviews the findings of the tribunal and decides whether or not to recommend removal to H.M. the Queen, who finally decides. The Governor carries out the decision.

2.Tribunals are initiated only with regard to serious matters that could lead to dismissal, and this process therefore precludes complaints that may fall below that threshold. Such less serious complaints are dealt with internally by the judiciary; thus the position is restored to what has it has always been in Cayman and throughout the English-speaking world, ever since the 1771 Act of Settlement.

The Cayman Islands Constitution (Amendment) Order 2016

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  1. Anonymous says:

    And who pray tell disciplines the Chief Justice?

    • Just Knowin' says:

      The short answer: no one.

      The long answer: the Chief Justice is the head of the independent judiciary of this country, one of the three branches of our government. That is both why he must have the power to discipline junior judges – not the Governor – and why he should not himself be subject to the disciplinary control of anyone. If the Chief Justice were to continue to be subject to the disciplinary control of the Governor, the Governor could through the misuse of that power purport to exercise control over the judiciary of which the Chief Justice is the head. If you haven’t noticed, the Governor’s Office does end up in court from time to time.

      IF on the other hand, the Governor thinks that the Chief Justice should be REMOVED for misbehaviour or inability to discharge the office – not disciplined for actions which fall below the question of removal, but REMOVED altogether – then he or she refers the question to the J&LSC, which conducts an inquiry and tells the Governor whether or not the question of removal should be referred to the Privy Council. The Governor can accept this advice, turn it back to the J&LSC for its reconsideration, or act against it if in the interests of Her Majesty. If the question of removal does go before the Privy Council, then the Chief Justice’s fate is in its hands. It may opine that the Chief Justice should be removed, in which case the Governor – by a mere formality – will remove him. But nowhere in this process does the Governor judge the merits – he or she only decides whether the question of removal should be referred, first to the J&LSC, and then once in receipt of its inquiry, whether the question should be referred to the Privy Council. The Privy Council, if it decides that the Chief Justice should not be removed, can opt to discipline him instead for falling below the standards required of his office but not so far below that he should be removed from it.

      And yes, it should be that hard to ‘discipline’ the top judge of a country. Otherwise, you get things like the Governor’s Office entertaining misconduct complaints by people like Martin Bridger that SHOULD dismissed without inquiry, to have a sword hanging over the Chief Justice’s head in the event something like an FOI request should ever come before the court. Not how the system of government is supposed to work.

      • Anonymous says:

        By the way, Just Knowin, the JLSC “inquiry” is not by the JLSC itself, but an independent “judicial tribunal”, right?

        So if the governor decides to “turn (a decision) back” to the JLSC, it would actually go back to the tribunal? So the JLSC would convene another and different tribunal?

        Is that right? Sounds a little like double jeopardy.

  2. Just Knowin' says:

    I expected a mix of informed and uninformed comment on this article. There really is nothing to see here for anyone who does not already know what to look for. The fact is that this amendment puts in place a proper separation of powers between the three branches of government and that is everybody’s best interests. The fact that it is also in the interests of the judges is the only ‘newsworthy’ angle on the amendment and also misleading as to the actual impact. Judges ‘manage themselves’ in democracies primarily for three reasons: 1) anyone else with that power could abuse it, 2) only other judges know what the job involves and therefore whether it is being done to the required standard and 3) the decisions of judges can always be appealed to higher judges (when one reaches the very highest level, one also reaches the constitutional consensus of the country concerned that that should be the highest level, so that court is itself subject to the will of the people). Criticism of the Chief Justice for having no doubt worked very hard behind the scenes for this amendment is misplaced. It should instead be directed at those who made the amendment necessary (namely, the Office of the Governor and some of that office’s appointees) by, on multiple occasions, treating our courts and judges as if they were no better than our worst politicians over an extended period of time.

    • Anonymous says:

      Just Knowin’. : I had to smile with admiration! Very well said! Proud that we have people like you writing in on CNS.

      • Just Knowin' says:

        I don’t often comment on CNS, but when I do…

        • Anonymous says:

          Just Knowin, thank you! You should visit these columns more. We need persons of your calibre who actually know what they are talking about to write. It is very helpful in understanding issues.

          Much too often we have people, such as “Just Watchin”, popping up and distorting the truth, with no one to set the record straight.

          Thank you very much. Really appreciate your clear and helpful explanations.

  3. Courts Need Shake Up says:

    Power corrupts. Absolute power corrupts absolutely.

  4. Just Watchin says:

    Thanks for giving this matter such an appropriate title CNS.

    I take it from your story that this amendment to the CI Constitution Order 2009 was recently announced by the Governor’s office, presumably sometime after Extraordinary Gazette No. 63 of 2016 published on Friday, 12th August 2016 bearing the Governor’s Proclamation No. 5 of 2016 proclaiming that the amendment would come into effect that day.

    According to the actual order which you have kindly provided a link to on your site, it was made on 13th July 2016 and laid before Parliament on 20th July 2016.
    I imagine that you, as well as other readers, would have seen a story appearing in another local media on 21st July 2016 (one day later) entitled “Constitution: Judges may serve until age 70” https://www.caymancompass.com/2016/07/21/constitution-judges-may-serve-until-age-70/ . It is obvious on reading that story that the reporter who penned it had access to someone who had been on the forefront of the battle between the Chief Justice, the Governor’s office and the recently established Judicial & Legal Services Commission (J&LSC). My experience and common sense tells me that ‘victors’ are always keener to meet the media than are ‘losers’. Clearly, in this case, ‘someone’ couldn’t wait until the victory had been formailised as it was last Friday, 12th August 2016.

    I find it interesting that neither the ‘source’ who fed the other local media’s story of 21st July 2016 or the Governor in her announcement bothered to convey to the public that under the amended Constitution:
    • Magistrates and Grand Court judges are subject to the disciplinary control of the Chief Justice;
    • Court of Appeal judges are subject to the disciplinary control of the President of the Court of Appeal; and
    • the Attorney General, the Director of Public Prosecutions, the Solicitor General, etc. are subject to the disciplinary control of the Governor.

    And guess who is exempt from ANY DISCIPLINARY CONTROL – the Chief Justice and the President of the Court of Appeal. Well, well, well!!

    It is so ironic that while this ‘victory’ was being wrapped up, you ran a story on 07th July 2016 re. the sentencing of an attorney involved in a traffic accident https://caymannewsservice.com/2016/07/crash-lawyer-jailed-for-3-years/ at the end of which you reported that visiting Grand Court judge, Justice Malcolm Swift, had expressed his dismay that a traffic matter involving the person he had just convicted and sentenced had not been dealt with in five (5) years before the courts.

    And you ran a story on 14th July 2016 about the huge backlog of outstanding warrants https://caymannewsservice.com/2016/07/cops-battle-over-1300-outstanding-warrants/ that the RCIPS is grappling to deal with because of an antiquated system that utilises their resources to do things that could be done by civilian employees of the Court.

    Not one word has been said in the media about either of these matters by the Judicial Administration under the control of the Chief Justice. But ‘a media house’ was seemingly fed a story about this ‘victory’ on 21st July 2016 – one (1) day after this amendment was laid before the UK parliament and even before it was brought into effect. If 1/100th of the time put into fighting this battle with the Governor’s office and the J&LSC had been put into managing the delivery of judicial services, neither of those articles would have been written. But alas – victory means there are no consequences.

    And you know what else, if it weren’t for the J&LSC, we would not be getting the calibre of judges that we have been getting since 2010 when the J&LSC was established. I doubt any judge appointed under the pre-J&LSC era would have questioned the gross inefficiency of our system in open court as Justice Swift did.

    Sadly, my sources tell me that there is more to come. With a Cabinet where six of ten members profess to be lawyers, in a legal community where lawyers are like tennis players at Wimbledon (before John McEnroe turned up there in the late ‘70’s) saying “Yes Sir” to every call whether good or bad, I am predicting that the next ‘victory’ will be appointment to the J&LSC – appointment of the Chief Justice, by our darling Governor.

    There is nothing to say about Alden’s and McKeeva’s role in condoning this other than to say that it is time to rid ourselves of the dinosaurs. Neither they nor Helen felt that we needed to know that they were doing; just tell us when its done.

    Watch this space.

    • Anonymous says:

      Avery well written and knowledgeable comment, Just Watchin’.

    • Anonymous says:

      11:49 pm: I sense your bitterness — I wonder what created such acrimony?

      Just one thing jumped out at me — calibre of judges since 2010? Given the tenure of judges and the extraordinarily low turn over, that implication just does not hold water.

      As another example of your flawed reasoning, you appear to lay the blame for a delayed traffic matter at the feet of the court. You are no doubt well aware, given the details you provide, that the RCIPS and the Prosecution bring cases before the courts — not the other way around as you suggest.

      As I said, such bitterness. Wonder what that is all about “Just Watchin”?

    • Anonymous says:

      By the way, “Just Watchin”, I am pretty sure that Tempura must be indelibly imprinted on your brain — you do recall something called “Tempura”, right? I bet you do.

      Who stood his ground against the Governor and his cohorts in trying to get a warrant signed? The Chief Justice! Well, well, well.

      And who encouraged a senior civil servant to go ahead and sign a similar warrant in the same Tempura matter that propelled the sorry spectacle into court only to be thrown out and costing the government millions?

      Everyone now knows the answer to that — well, well, well.

      What the Chief Justice demonstrated was the value of the separation of powers. Given half a chance civil servants, yea those at the very top, have no compunction about totally ignoring when it suits their purposes the very foundation upon which a democratic society must rest.

      By the way, you do reveal that very disposition to ignore fundamental underpinnings of democratic functions in your post.

      Well, well, well.

      That is the reason that has made this amendment necessary — to restore the
      independence of the judiciary within the constitution — which is in place in most democratic societies.

      • Anonymous says:

        Yes, it 9:29 am, I believe that the actual words of the very, very senior civil servant were “The Governor knows” — leading his colleague down the path to you know where. These were the actual words from media reports of the court case.

        It there was ever a clear object lesson as to why you cannot trust the civil service to make judgments based on law and well established ethical standards rather than on power that was it.

        But we have always known that the vestiges of the old historical precedent of the divine rights of kings is still around, weilding its corrupting influence.

      • Anonymous says:

        It is best not to cite the role of the Chief Justice in Tempura as something we can be proud, happy and secure about, no matter what the virtues of this present constitutional amendment may be.

        • Anonymous says:

          Anonymous at 3 pm: and it is best not to caste aspersions without stating your case. Pray tell us exactly what you are speaking about. The Chief Justice is exactly one person we can be proud of in the Tempura saga.

          • Anonymous says:

            Not according to the Tempura report that was made public recently and was most critical of him. Which planet are you on?

            • Anonymous says:

              11:56 am — It depends on whose opinion it was.

            • Anonymous says:

              11:56 am, at 18/08: I am on the planet of those who take charges from the infamous with a huge grain of salt. You talking about allegations made by (as Donald Trump would say) Bridger? Really? Seriously? I would rather not be on your planet.

              Incidentally, read the last para of 10:22 am, 18/08 by Just Knowin. Hello!

            • anonymous says:

              11:56 am on 18/08, let me refer you to the Tempura Report and the Chief Justice’s response to Governor Taylor’s proposal at the time to release it to Bridger. Both are published on the Governor’s website.

              I hardly think that I am going to be giving credit to allegations by the embattled Bridger over and above the response of a Chief Justice who has been the model of rectitude and respect for law in these islands over these many years, and who operates every single day in the glare of public, media, other lawyers, and his fellow judges.

    • Anonymous says:

      Someone so obviously exposed as Just Watchin appears to be surely must be ignoring the basic tenet of democracy that one does not allow the executive branch — civil servants — not to mention the political arms (mercy!) — to have disciplinary control over judges.

      Talk about all hell breaking lose.

      Just Watchin’s selective sense of umbrage — righteously indignant — though not exactly to be relied upon — over a few things but ignoring the weightier principles of democracy — hints at his being a former civil servant.

    • Anonymous says:

      Just Watchin, you seem to be throwing everything you can find against the wall to see what sticks, by appealing to uninformed notions of how a democratic society functions, and to those who see a conspiracy around every corner.

      For example, why would someone like you obviously are/were attempt to try to mislead the public in thinking that the Chief Justice is outside of the reach of law. Come on, you don’t really think that, do you?

      Secondly, you sink into and wallow in conspiracy theory. Nobody had to “plant” this story. It is the media’s job to follow proceedings of interest to Cayman, and they were no doubt keeping an eye on this matter. And these were not secret hearings. So what, anyway — Isn’t this something that should be made public? News is only news if it is new — so the competition is on to break news. To talk about someone couldn’t wait for it to be published just sounds so juvenile. Whether it was published or not in a local newspaper makes no difference at all either in the outcome of this matter or to any of the persons involved.

      And then you switch from that to take the opposite tact — now no one wants the public to know what is in the new amendment — more conspiracy nonsense.

      What you fail to say is that, as another poster so eloquently said, the amendment RESTORES the constitution to what it was and should be before it was messed around with. And is the Privy Council part of this conspiracy? And what about the British Parliament? Maybe the Queen? Maybe she is in on it? All of these institutions have said yes this needs to be righted.

      Nothing here to see at all. We have just righted the legal and judicial ship that was a little off kilter and which has made us all in Cayman so proud.

    • Anonymous says:

      Just Watchin, there are three arms of government and the proverbial buck stops with each of the heads in each of their spheres. So just as there is no direct day to day supervisory control of the Speaker and the Governor, at least in our local government context, so there is no one is above the CJ to exercise day to day control.

      However, just as in the case of the other two heads of state, there is provision in law for ultimate discipline where required.

      So it is incorrect to say that the office of the CJ is “exempt from ANY discipliniary control.” Other posters have ably outlined those processes.

  5. Anonymous says:

    “Quis custodiet ipsos custodes?” (Juvenal). Who shall guard the guards?

    • Anonymous says:

      The purpose of the constitutional amendment in question is to ensure separation of powers, which is a fundamental plank of democracy. This means that neither the executive branch nor the political branch can exercise control over judges. You can imagine what could potentially happen to the integrity of judgments if judges were exposed to a system in which they risked being punished by another branch of government. Restoring this principle of separation of powers is consistent with best practices in most Commonwealth jurisdictions. Otherwise, this constitutional amendment would not have been approved by the Parliamentary and Privy Council processes in the UK with the approval of the Secretary of State of Foreign and Commonwealth Affairs.

      In Line with this, CNS is not correct in saying in paragraph 2 of this report that the governor remains responsible for “serious disciplinary issues regarding complaints or the potential dismissal of members of the bench.” Disciplining or dismissing a judge is not the purview of the governor at all. That would lead us right back to the reason this constitutional amendment was made in the first place — the separation of powers among the three branches of government and the independence it affords the judiciary in the dispensing of justice.

      If you recall, not so long ago, an independent tribunal conducted an inquiry that recommended the dismissal of a judge. That recommendation went to the UK Privy Council, then ultimately to Her Majesty the Queen. The governor’s role was a mere formality after the Privy Council had made its ruling.

      That procedure remains the same and, again, is consistent with best practices to ensure that judges can make independent, fair, and just judgments in your case and mine.

      • Anonymous says:

        So who would have the powers to institute proceedings against the Chief Justice that would set a possible disciplinary case against him on the path to the Privy Council?

        • Anonymous says:

          3:03 pm, I am not an expert in constitutional law but I think that if a complaint against anyone in the judiciary, including the Chief Justice, rises to the level of being cause for dismissal, then the Judicial and Legal Services Commission (the JLSC) could make a recommendation through the Office of the Governor for an independent judicial inquiry to be called.

          The lawyers out there could comment.

          So that would make the Governor technically though not directly responsible for dismissal. That call is made by the said tribunal.

    • Anonymous says:

      @ 5:31 pm — I would never trust the civil service or the politicians as guardians of law and ethical standards.

      I will take my chances with those who uphold the law every day in full glare of the media, lawyers, and the public at large — the highly regarded and well respected judges.

      Every decision that they make is parsed every day and then we have appeal courts above them scrutinizing their every decision.

      I will bet on the judges any day over the power-steeped civil service with their weak backbones.

      We just had a board chair jailed for corruption while senior civil servants watched and said and did nothing.

      Those are not the guards I want taking care of the shop.

  6. Anonymous says:

    Sounds a little bit incestuous to me, but who are the public to pronounce judgment?.

  7. Judgement Day says:

    The Fox watching the hen house for the boys

    • Anonymous says:

      This will be a complete & utter disaster. Many [people] may eventually have to escalate their case matters to the UK Supreme Court, if not, the Hague.

      This is such a bad idea.

      “Dear Lord, please help the people of these Islands”.

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