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CJ: Separation of powers not breached

Thursday, July 24 2014

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CHIEF Justice Ivor Archie ...
CHIEF Justice Ivor Archie ...

CHIEF Justice Ivor Archie yesterday stated the separation of powers had not been breached via its participation in a consultation process in relation to criminal justice reform legislation, which was disclosed in the Senate by Minister of Justice Emmanuel George on Tuesday.

Archie said “legislative reform is necessarily a consultative process” and said “from time to time legislation affecting the justice system is sent to the Judiciary and other stakeholders in the administration of justice for comment before submission to Parliament.” His comments came as George yesterday expressed, “regret” in the Senate over his initial remarks and sought to clarify them.

The Chief Justice said consultation reduces the risk of unworkable law, and legislation affecting the judicial system is sent to the Judiciary from time to time.

“The Chief Justice advises that from time to time legislation affecting the justice system is sent to the Judiciary and other stakeholders in the administration of justice for comment before submission to Parliament,” he said. “This is considered to be a prudent measure since the implementation of new legislation often requires changes in the way Judicial Officers’ function, as well as the re-engineering of the Judiciary’s internal processes or even the alteration of physical plant. Consultation therefore reduces the risk of the passage of unworkable legislation.”

However, this should not be regarded as a breach of the separation of powers since the judges do not dictate policy.

“Legislative reform is necessarily a consultative process and as long as the Judiciary does not dictate the form the legislation takes, the fact of consultation breaches no principle of separation of powers,” the Chief Justice said. “In offering its comments, the Judiciary is not making policy, it is commenting where appropriate and when invited, on policies formulated by the executive and articulated in draft legislation.”

The Chief Justice further cited the statutory Rules Committee which is charged with drawing up the rules governing the legal system and noted that the Attorney General sits on this committee ex officio under the laws which govern that committee.

“The public can feel assured that the offering of comments in the context described cannot and does not commit or predispose the individual Judges to any particular interpretative position should the legislation fail to be considered by the Courts,” Archie stated in a media release.

He stated laws involving the judicial sector could appropriately be commented on.

“While in the justice sector, just as in others, it is up to the Legislature to approve and pass primary Legislation in whatever form it deems appropriate, in the justice sector in particular, however, much of the primary legislation passed by the Parliament is unworkable without secondary legislation in the form of Rules promulgated by the Rules Committee,” Archie said. “This Committee is chaired by the Chief Justice and includes the Attorney General and representatives of the Bar. The process of consultation, therefore, is also relevant to the preparation of these Rules and continues during such preparation.” He said it is ultimately for the courts to interpret legislation passed, not any comments or views expressed prior.

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