Aspects of Judicial Independence and Accountability – Lessons for the Commonwealth Caribbean?*

Abstract

Ten years ago Sir Anthony Mason, a former Chief Justice of Australia, warned that ‘a failure to strike the right balance between judicial independence and judicial accountability will result in either an unacceptable weakening of judicial independence or inadequate accountability’.1 * This paper was originally delivered at the 15th Commonwealth Law Conference in Nairobi. Reprinted with permission of the author. ** Sir David Simmons, K.A., B.C.H. assumed office as the 12th Chief Justice of Barbados on January 1, 2002. Sir David Simmons studied Law at the London School of Economics and Political Science, graduating in 1963, with the LL.B. (Hons.) degree and in 1965, the Master of Laws degree (LL.M). In 2003, he was made an Honorary Fellow of the University of the West Indies and was also awarded the Honorary degree of Doctor of Laws (LL.D.) by the University of London – the first Caribbean person to be accorded that high distinction by that University. In 2006, Sir David was elected as an Honorary Bencher of the Honorable Society of Lincoln's Inn, the Inn of Court at which he qualified as a Barrister‐at‐Law. From 1976 he served continuously for 25 years in the Parliament of Barbados and in 2001, he retired from active politics. Appointed twice as Attorney‐General of Barbados, from 1985 to 1986, and from 1994 to 2001, he reformed and modernized the laws of Barbados in a wide variety of areas; represented Barbados at regional and international fora and has published widely. Sir David also acted as Prime Minister of Barbados on many occasions between 1994 and 2000. In 2001, for his contribution to public service, law and politics, he was awarded the Barbados Centennial Honour (B.C.H.), and Barbados' highest national honour, Knight of St. Andrew (K.A.). 1 Judicial Commission of New South Wales (1997) Fragile Bastion – Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales), Chapt 1, p. 2. This article examines some of the evolving aspects of judicial independence and judicial accountability within and outside the Commonwealth Caribbean and highlights some of the practical problems that occur in our region or are likely to arise. Decisions of courts and emerging practices in other parts of the Commonwealth provide excellent guidance and lessons for us in the Caribbean. Judicial independence and accountability are not esoteric matters. They are principles that, admittedly, may resonate particularly with judicial officers because they tend to affect judicial officers in practical ways. But they are principles that are fundamental to good governance in democratic societies. Indeed, Commonwealth Heads of Government acknowledged the importance of these two principles when, at their meeting in Abuja, Nigeria, in 2003, they adopted the Latimer House Guidelines2 as Commonwealth Principles. Such importance and respect are now accorded judicial independence that the UK Parliament actually enshrined the principle in the text of the Constitutional Reform Act 2005: ‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary… must uphold the continued independence of the judiciary.’3 2 The Latimer House Guidelines for the Commonwealth, 19 June 1998. 3 Section 3(1). Although this article will discuss judicial independence and accountability separately, it will be argued that the two concepts are not inconsistent and must coexist.