Our Constitution and the Judiciary – 4
A convincing case can be made that judicial officers and Court officials in O.E.C.S. countries are exposed to the influence of their political directorates, directly and indirectly, by some of the institutional arrangements put in place for the appointment of these officers to substantive and acting positions, for their removal from office, and from the extension of their tenure beyond retirement age and the source and manner of their remuneration. Equally, it may be compellingly argued that our Constitution provides certain safeguards and mechanisms for protecting the Judiciary as an institution against political manipulation in the exercise of its functions.
One such safeguard is the requirement set out at Section 7 of the Supreme Court Order that judicial officers, before entering upon their functions, take two oaths or make two affirmations in respect of their impending functions. One is that they shall be faithful to the Commonwealth of Dominica and shall bear "true allegiance" to the State "according to law". The other is that, while in office, they shall "well and truly ... serve" the interests of the Commonwealth of Dominica. In other words, the officers swear to carry out the functions of their office according to the law, that is to say, independently, freely, and without fear or favour. The protection against political manipulation which flows from this is that officers who carry out their work in this way may not legitimately be called to account.
Yet another safeguard is inscribed at Section 11(1)(b) of the Supreme Court Order. It is that the terms and conditions under which judicial officers are appointed "shall not be made less favourable" to them while they remain in the offices to which they have been appointed. Related to this is a further protective mechanism provided for by Section 4 (1)(5) of the Order. It states that "no office" of Chief Justice, Justice of the Court of Appeal or High Court judge may be abolished, if that office is filled, "without the consent of the holder thereof".
Protection is further offered to judicial officers against frivolous removal from office. As pointed out before, a Judge may be removed "only" for inability to discharge the functions of the office or for misbehavior. Further, the temptation to indiscriminately remove Judges might well be restrained by two other factors. One is that a Judge cannot by law be dismissed summarily; a drawn-out procedure, set out at Section 8, paragraphs 4–9, and involving the Privy Council is required. The provisions set out at paragraph 4 of Section 6 of the Order constitute the other factor. It enables a Judge to continue in office, following dismissal, in certain situations, "for the purpose of giving judgement or otherwise in relation to any proceeding heard by him while he was holding the office of judge". So, it would be counter-productive for political directorates who are unhappy with the conduct of a particular case in the courts to seek to remove the Judge concerned from office, knowing fully well that, following his or her removal, the said Justice might continue to hear the case.
As to remuneration of Judges, two safeguards against political control of the judicial process may be pointed to. Section 11 (1) (b) of the Supreme Court Order provides that "the salary and allowances (other than allowances which are not taken into account in the computation of pensions) of a Judge shall not be reduced ... during the currency of (his or her) appointment". The potential for independence of judicial action created by this, is strengthened by the provision at Section 13(2) of the Order that the salaries of judicial officers are charged on the Consolidated Fund of OECS member states. Sections 77 to 79 of our Constitution protect the Consolidated Fund from indiscriminate withdrawal of monies and, in that way, insulates judicial officers against delayed payment or non-payment of their salaries.
Jurists have offered the view that a true measure of the independence of any Judiciary is the extent to which that institution is equipped with a guaranteed exclusive jurisdiction over matters of critical significance. Grenada-born Caribbean jurist, Dr. Francis Alexis, puts it this way: "Judicial independence rests too on the judiciary having a guaranteed jurisdiction. There is no point in having independent judges if their power to decide legislation can easily be taken away from them and given to tribunals manned by personnel not required to possess the qualifications of judges, and not given the protection afforded Judges by the Constitution".
Our Constitution gives the judges of the Supreme Court such jurisdiction in a number of matters. One such subject-area has to do with certain "inalienable powers" placed in the hands of the Supreme Court. These powers cannot be taken away from the Court by ordinary Acts of Parliament and given to lesser courts or tribunals. Dr. Alexis identifies these powers as conferring on the Supreme Court "an unlimited jurisdiction in all serious criminal offences, unlimited original jurisdiction in all substantive civil cases, and inherent supervisory jurisdiction over inferior tribunals". These powers of the Supreme Court apply to Dominica and are fairly well known.
Another area of exclusive jurisdiction, namely, the determination of whether or not the fundamental rights and freedoms of citizens have been, are being or are likely to be infringed, is less well known. We, as citizens, are guaranteed liberty, security of the person and the protection of the law. We are entitled to freedom of conscience, of expression and of assembly and association. We are to enjoy the privacy of our home and other property. These rights and freedoms are yours and mine, whatever our race, place of origin, political opinions, colour, creed or sex. And, except where our enjoyment of these rights and freedoms prevents others from also enjoying them, and where such enjoyment by us is against the interest of the wider society, we are to be protected in our enjoyment of them.
To do so, our Constitution at Section 16 gives an aggrieved person who believes any of these rights and freedoms "has been, is being or is likely to be contravened in relation to him" the liberty to seek redress. These rights and freedoms are available even to a person held in detention. In that event, an application for redress may be made by "any other person" on behalf of the detainee. The High Court is the tribunal empowered with jurisdiction to hear any such application. In other words, its jurisdiction in respect of the matter is an "exclusive original jurisdiction". Determination of the issue begins there.
The legal effect of this is that if a question, concerning whether or not the rights of a citizen have been, are being or are likely to be trampled upon, arises in any proceedings in a court (other than the Court of Appeal or the High Court or a court-martial) that court does not have jurisdiction to decide the question. What might be done is this. It "may" on its own account refer the question to the High Court. But, if the applicant requests that the question be referred to the High Court, then, the sitting Court "must" do so, unless in its opinion, "the raising of the question is merely frivolous or vexatious". That is to say, the question has no merit whatsoever, and has no chance at all of determination in favour of the person raising it. But the matter may not be settled in the High Court. If the aggrieved party is not satisfied with the High Court's decision, it may go as far as the Privy Council, our highest court.
The High Court has also been invested with original jurisdiction to determine questions concerning membership of Parliament. That is provided for under Section 40(1) of our Constitution. The jurisdiction extends to whether or not any person has been validly elected as a Representative or appointed as a Senator. Or, whether or not any person who has been elected from among persons who were not members of the House was qualified to be so elected or has vacated the office of Speaker. Or, whether or not any member of the House has vacated his or her seat or is required, by the Constitution, to cease to perform any of his or her functions as a member of the House.
Needless to say, a parliamentarian, who is dissatisfied with the High Court's ruling may "as of right" appeal the ruling before the Court of Appeal. But, unlike the process in respect of questions concerning the infringement of the rights and freedoms of citizens, there is no further appeal to the Privy Council. The decision of the Court of Appeal is final. Testimony to this are the recent cases involving our country's Prime Minister and Minister of Education. Further, paragraph 5 of the Section is of interest in that it confers upon Parliament a power to intervene. It stipulates: "The circumstances and manner in which and the imposition of conditions upon which any application may be made to the High Court for the determination of any question under this section and the powers, practice and procedure of the High Court in relation to any such application shall be regulated by such provision as may be made by Parliament."
As to whether or not any person is qualified to be nominated for election or elected as President, jurisdiction to hear and determine that question lies with the Court of Appeal. An application to the Court in that regard may be made by the Attorney General or by any other member of the House. And once more, as in the case of a member of Parliament, Section 22(3) gives the House the power to regulate the process.
It is our view that if the law is to be administered freely, independently, and without fear or favour, and if justice is to be dispensed fairly and impartially, it is essential that Judges and others charged with responsibility for doing so should to some degree be safeguarded in respect of actions taken by them in good faith in the exercise of their duties. In other words, immunity from court action is critical to the protection of judicial officers against political manipulation. That is a settled principle of the law. In the English case, Sirros v. Moore (1975), a matter involving a High Court Judge, it was held that no action for damages lay against a Judge of a Superior Court or a Magistrate of an Inferior Court for acts done in good faith in the execution of duty. The principle applies, notwithstanding that the Judge acted mistakenly and made an invalid order. This general immunity against civil proceedings attaches to other persons participating in proceedings, including Attorneys-at-Law, Claimants and Defendants, and members of the jury.
The question, then, is whether or not the institutional arrangements which conspire to subject our judiciary to political manipulation are adequately met, that is to say, balanced by constitutional provisions and legislation which allow for the independence and impartiality of the institution.
Copyright (c) William Para Riviere, May 2013