Friday, September 18 2009

WE heartily welcome the recent remarks of Chief Justice (CJ) Ivor Archie at the opening of the Law Term at the Hall of Justice on his concerns over the Government’s draft constitution.

It was refreshing to hear a CJ not try to regale us with statistics, but instead zero in on the real issue of the day, namely the draft constitution and its threat to the system of justice and the protection now enjoyed by citizens.

Newsday has long warned that the draft would claw back many existing constitutional rights.

Archie firmly warned against a looming encroachment on the traditional ideal of the separation of powers, and spoke of “disturbing implications for judicial independence”.

He challenged the proposed Ministry of Justice, alluding that if it took over the administration of justice, this could undermine the citizenry’s faith in the independence of the Judiciary, especially in a lawsuit against the Government.

Archie said, “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 records in the matter, the selection of the judge...Well all of those things are what court administration is about and that is the challenge to which the current draft would expose us.”

He was especially worried that the draft would let Parliament confer High Court powers on any court, which could violate the idea of the separation of powers and therefore undermine the Judiciary’s exercise of judicial review of executive action.

“It is the only protection that citizens have against arbitrary or unlawful State action,” he said of judicial review. He noted that judicial review could become even more vital if the independence of the services commissions is weakened, as also proposed by the draft. He observed, “Service commissions were originally created for the express purpose of insulating certain public offices from political interference.” Archie was also concerned that the draft proposes the Executive President appoint the Chief Justice, with Parliament in his view being an unconvincing check, which would all likely erode public confidence in the Judiciary’s independence. Under the draft, the CJ would no longer be a member of the Judicial and Legal Services Commission, he noted.

We welcome Archie’s assertion that the Office of Chief Justice carries a duty to speak out and to give balance and perspective in national debate.

We fully support his call for citizens to become acquainted with the debate on the draft constitution and to not leave the heavy-lifting to others.

Newsday yesterday carried the full text of Archie’s address which we keenly urge our readers to ponder. This is especially so in light of Cabinet’s promise to reply today to Archie’s remarks. While Archie quoted several eminent jurists including US presidents to advocate the ideal of the separation of powers, one of his most powerful quotes was an anonymous poem which he directed at “those of us who dare to lead”. We quote, “I sought to hear the voice of God, I climbed the highest steeple; But God declared, ‘Come down again, I live among the people’.”