RUGGLES FERGUSON

What is the role of an independent judiciary in a democratic society?

The judiciary plays a critical role in any society. Our societies are based on the Westminster model. We have our own constitution, the 1974 constitution. Intrinsic in that constitution like other constitutions in the Commonwealth Caribbean is the separation of powers. There are three main arms of the state; the Executive represented mainly by Cabinet to shape policy; the Legislature which comprises the House of Representatives, the Senate and they are the lawmaking arm of the state; and of course we have the judiciary which represents the court system, the judges of that court. The separation of powers is intended to ensure that there are checks and balances in society so that no one arm is able to abuse it’s powers. They are all co-equal arms of the state and they are independent of each other. Therefore no one arm can dictate to the other arm and no arm must interfere with the work of another arm.

Of course the judiciary is what has been described by many as the last bastion of justice.
When an individual has problems, whether with other individuals in society as between individual and individual, as between individual and company or as between individual and government that individual can turn to the judicial system for justice.

Once you feel your rights are being trampled, and there should be some course of action as a result of some wrong that has been done to you then you can head to the court for redress.

When you go to the court for redress you want to ensure that the judges who sit on that court are independent, are fair and are fearless. In other words you don’t want a judge sitting in a matter for example against the government who fears giving a ruling against the government if the law so dictates because he or she fears that he or she will not be promoted, be dismissed or will not receive some perk as the case may be.

So actually you need strong judges. You need an independent judiciary to uphold the rule of law because if you don’t have that independent judiciary there will be a breakdown in law and order in society and people will be minded to take the law into their own hands if they feel they cannot get redress before the court.

Have we in recent years seen deterioration in executive respect for the independence of the judiciary?

Over the last few years we have had several disturbing attacks on the judiciary. There is a system where if a party feels aggrieved they can go to the courts to get redress whether it is against other individuals or against the government itself. You can go to the court for redress and the court ought to rule in accordance with the law whether in favor of the government or in favor of the individual. That is what the rule of law is all about.

Over the past few years we have witnessed several attacks on judges in our country. Those attacks are being directed particularly at judges who have ruled against the government in different cases. We find the disturbing trend of the past few years where judges will be publicly attacked when they rule against the government. We have had more recent examples in 2006 when the Attorney General himself made a statement to the press to the effect that they are not surprised. In that case it was a ruling against the government in the Peter David matter and the response of the Attorney General, the head of the Bar and principal legal advisor to the government was “we are not surprised because we do not expect them to rule otherwise. However when we go to the court of appeal we expect a reversal.”

Implicitly saying that the judge in that particular case was biased against the government. We also have the example of another judge-and we have always had two judges here over the past few years. In a case where he ruled against the government he also was attacked and accused of being biased.

The system is intended to deal with dissatisfied litigants. There is a hierarchy of course. If you go to the High Court and you feel dissatisfied or aggrieved by the ruling, you feel that the judge was wrong you simply appeal to the Court of Appeal. In certain cases if you appeal to the Court of Appeal and you are still dissatisfied you go all the way to the Privy Council if the matter allows. For some matters there is an automatic right of appeal to the Privy Council and in other matters you have to seek the court’s leave or permission to appeal to the Privy Council.

It is highly irresponsible when a judge makes a ruling and you have agents of the government going out and attacking the judge. What that is intended to do is to apply pressure on judges so that they become afraid with the end result that they will rarely rule against the government. So you have pressures in different forms, you can have pressures in direct form and you can have pressures in indirect forms.

Matters like that being the case, how does that affect the rule of law and the dispensation of justice?

You need strong judges. Judges swear to be bound by the law and to rule in accordance with the law, to rule without fear or favor. But of course judges are human beings also and when you have powerful institutions especially the government from whence the paycheck of the same judge originates- the Executive is expected also to provide the basic facilities, the housing, security and other allowances putting pressure on judges -as a human being quite logically one would have concerns about that but these concerns of course would have to be counterbalanced by your abiding duty to rule in accordance with the law. However such attacks on judges brings unnecessary pressure to bear on them and there could be a perception at times when they rule for the government, even though that’s where the law dictates that they rule, the man on the street could form the perception that they are ruling for the government just because they are afraid of the government.

The last thing you want is for the man on the street not having confidence in the legal system because the court is the place you can go for justice and if you feel you cannot go there because the Executive controls it or the judges are in any way biased then you are surely on the road to anarchy.

As the global dispensation changes, the world is more competitive everything is more demanding and we expect every sector of our society to be able to compete on a global level. Can the judiciary be left behind, if our country experiences development and growth generally, but the present state exists with the judiciary? Can its development be retarded in terms of matching up with global demands and trends?

The judiciary like all other sectors of society and sectors of the state ought to keep up with all the changing trends locally, regionally and internationally. In other words the judiciary has to keep in tune with the times.
One example is technology. You cannot have a situation where all of the other sectors are improving on their efficiency through the use of technology and the judiciary is lagging behind because of lack of technology.

At the end of the day the judiciary ultimately and here we are speaking of magistrates and judges has to contend with a long list of matters of various kinds before their respective courts on a daily basis and they have to find ways and means of keeping up with these long and growing lists.

One example, in the Magistrate’s court the magistrate still writes out the evidence in long hand. For each witness in a case the evidence has to be reproduced and the magistrate is responsible for keeping a proper record.

What you have in effect is the magistrate sometimes writing for hours every day, having to read back all this evidence and still address his or her mind to the issues of law and doing the research.

In some countries judges have research clerks and in some countries the judges do not have to take any notes because this is done by professional secretaries or court clerks and transcribed almost immediately. In other words it’s typed and you can actually see it running across the screen so the judge can focus more on the factual and legal issues before him or her.

So you need to have the technology in place in order to keep up with the times but in order to get the technology you need to mobilize the resources and most times the resources come from the same Executive.

How does maintaining a respected and independent Judiciary tie in with overall good governance in a society?

Again it has to do with checks and balances. As the saying goes power corrupts and absolute power corrupts absolutely. You cannot have a situation where any arm of the state feels that it has absolute power. If such a situation develops the natural response would be for the other arms to step in and keep it in check.

The Judiciary has played that critical role whenever the Executive abuses its authority. The normal citizen, the man on the street as we say can go to the court for redress if he feels his constitutional rights have been breached. This can be the deprivation of property, freedom of expression, freedom of conscience, freedom of assembly, and right to liberty, whatever. If you feel your rights are being breached you can go to the court for redress and that is one way of stopping or controlling abuse of executive power.
It is really critical to have an independent Judiciary with strong judges who are fair but at the same time fearless and willing to uphold the law whatever the cost.

What is the call of the Grenada Bar Association in that regard?

The Grenada Bar Association vigorously defends the independence of the Judiciary. Judges cannot speak for themselves. Judges cannot respond to public attacks. When a judge is attacked as being biased by agents of the Executive the judge is not expected to issue a public release or make a public response to that particular attack.

As the saying goes judges speak through their judgments. Therefore anytime there is an attack which smells of interference with the Judiciary, it is the duty of the Bar whether in Grenada or elsewhere to defend that principle, the principle of the independence of the Judiciary and to respond appropriately to these attacks.

That’s why the Grenada Bar has been vocal on issues that touch and concern the independence of the Judiciary and even more importantly the Grenada Bar Association has been actively involved in public legal education. In fact I can say without fear of contradiction that the GBA has the most organized and consistent public legal education program in the entire Caribbean.

We have weekly radio programs, weekly television programs, we launched a magazine a few years ago that following Hurricane Ivan has been in abeyance but we hope to resuscitate soon. all these public education programs are designed to sensitize and educate the public on issues that touch and concern them; land matters, the buying and selling of land, the law of succession, dying with and without a will, domestic violence issues, criminal law issues, constitutional law issues. You name it we have touched on those areas trying to explain in simple language to the public what the law is.

That goes a long way we believe in minimizing violence and contention in society because many persons have a misconception of what their rights are. For example you have land matters that involve boundary disputes between parties and many of these disputes inevitably land up in the criminal court.
People who have a misconception of their rights decide to solve the problem through violence, through the cutlass, through knives, through guns as the case may be.

So we think that these public education programs really arm the public with the basics about the law sufficient to assist them in and guiding them through their daily affairs and most of these programs are interactive.

The Bar intends to continue along the path of public legal education. We instituted Law Week about 5 or 6 years ago. A week in the year specifically designed for public legal education in the form of visits by lawyers to schools, visits by students to the courts and general programs on the radio and television educating the public on different issues. All of these we intend to continue while at the same time raising the bar within the profession, lifting the standards within the legal profession through continuing legal education and this we shall continue to do together with entities like the OECS Bar Association and the Judicial Education Institute of the Eastern Caribbean Supreme Court.