Bert Samuels, GUEST COLUMNIST
An independent judiciary forms the core of the rule of law. Our constitutional arrangement seeks to make a clear separation between the three arms of government: the executive (Cabinet), the legislature (Parliament), and the judicature (judges).
We hold elections every five years to determine the composition of the executive and legislature, and, therefore, our parliamentarians and ministers have no security of tenure beyond their elected term.
On the contrary, the judicature enjoys security of tenure beyond that granted to members of the Cabinet and the legislature. Section 100 (1) of the Constitution enshrines that "... a judge of the Supreme Court shall hold office until he attains the age of 70 years." In fact, even after the retirement age has been reached, he (or she) may continue to sit as a judge in the event there are outstanding judgments to be delivered.
Judges cannot be removed from office, save and except for their inability to discharge the functions of their office (whether arising from infirmity of body or mind, or any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions under Section 100 (4).
Judges are paid, as is provided for in Section 101(1) of the Constitution, under a law to be passed by our Parliament, and judges are guaranteed that, at no time, can their salary be altered to their disadvantage during continuance in office. To protect their compensation package, judges cannot employ the services of a trade union, but must look to the Constitution itself to protect their interest.
All I have said so far, and that which is to follow, has been motivated by the issues raised in an article by Barbara Gayle, justice coordinator, in The Sunday Gleaner (October 13, 2013), titled 'J'can judges demand justice'. It made the startling revelation that our Supreme Court judges have not received an increase for the past six years, that is, since 2007!
Having regard to the fall in the value of our dollar over the said six-year period, isn't the Government in breach of the aforementioned Section 101 (1) of our Constitution in that their pay has been effectively "altered to their disadvantage ... "?
recommendations consistently ignored
The president of the Court of Appeal revealedthat the "Government consistently ignores the recommendations of the independent commission on judges' salaries and emoluments".
This is a most unsatisfactory state of affairs, as it is an arrangement which is in breach of the spirit and letter of the Constitution. For the judiciary to carry out its functions void of interference from any arm of government, it cannot be looking to the Cabinet and the legislature to improve its pay package at the same time.
There is, in reality, no separation of powers based on what currently obtains. The judiciary cannot be hoping to be favoured by the executive while claiming to be independent of it. Is it not the case that he who pays the judges calls the tune?
The Constitution gives direction on the source from which the judges must be paid - the Consolidated Fund. It is the determination of the amount and the subsequent increases they deserve that is of fundamental importance in our democracy.
To ask our judges to forgo an increase for the past six years is to weaken them in all respects. It is an untenable state of affairs that they should be looking to the Government, awaiting its decree on how much and when.
By way of reform, there ought to be an independent body appointed, itself having security of tenure, which reviews the salary of judges periodically. There must be provisions made to guarantee that the government cannot ignore its recommendation. This would effectively take their reward out of the hands of the government, bringing an end to it being the holder of their purse strings while continuing to be a party in a litany of cases to be determined by the very same judges.
Can we truly rule out the possibility of a government punishing our judges with a salary freeze should they dare to hand down unfavourable decisions?
The mechanism to implement the intentions of the Constitution to make our judges truly independent of the government remains out-standing 51 years after its founding fathers made it abundantly clear that we should have a secure, truly autonomous and adequately compensated judiciary.
Bert S. Samuels is an attorney-at-law. Email feedback to firstname.lastname@example.org and email@example.com.