Judicial independence and accountability


Sunday, February 25, 2018

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The imbroglio over the terms of the initial appointment of Justice Brian Sykes appears, happily, to be abating. It is widely accepted that the prime minister made a good choice in Justice Sykes who, we are told, will be confirmed “in short order”. The sooner, the better.

The requirement for everyone who exercises authority in a democracy to be held accountable, including judges, and which the prime minister stated was his concern, cannot be controverted. But neither can it be contested that his approach, however pure his intentions, opens the possibility of intimidation of or interference with the judiciary. Even if it is permissible under section 99 of the constitution, and benign though this instance might be, it would be a precedent that a future prime minister could exploit for devious purposes.

The principle of judicial independence, having now been loudly reaffirmed and, hopefully, some valuable lessons learned, the issue of judicial accountability should not be allowed to become the idiomatic baby thrown out with the bathwater.

It is of immense significance that the judges, themselves, have publicly acknowledged the importance and necessity of accountability. In their statement issued a fortnight ago they asserted “We accept that, although the judicial branch of government is independent and should remain so, it is also accountable to the public. We therefore support any system geared towards enhancing judicial efficiency and accountability in the pursuit of timely justice outcomes”.

The issue that remains, therefore, is how that accountability is to be secured and manifested, being ever mindful that the firewall that safeguards the independence of the judiciary must never be breached.

There is always the risk of friction between judicial independence and accountability. It is an issue that continues to be intensely debated across the world and a variety of institutional arrangements have been put in place in different countries.

It is important to disaggregate that accountability. Firstly, in their adjudicative role, the decisions of our judges are subject to review by higher courts all the way up to the Judicial Committee of the United Kingdom Privy Council. The process ends there because, as the late Justice Robert Jackson once said of the US Supreme Court, “We are not final because we are infallible; we are infallible only because we are final.”

In this component of accountability, the competence of our judges and the high quality of their decisions have been validated by the fact that they have been upheld in more than 60 per cent of the 59 appeals referred to the Privy Council over the last 10 years, a ratio that is among the highest of all the countries for which it remains the final court of appeal.

Secondly, there is the issue of integrity and personal conduct that can affect the ability of judges to command the respect and confidence that their decisions and conduct of proceedings must have. It is to the credit of our judges that in the long history of our judiciary, the instances of personal misconduct or impugnment of the integrity of its members have been extremely rare.

The provisions in the constitution for the disciplinary control or removal of judges are complicated. For judges of the Supreme Court and Court of Appeal, no disciplinary control is allowed except for their removal from office for infirmity or misbehaviour. In the case of the chief justice and the president of the Court of Appeal, the process can be initiated only by the prime minister. In the case of other members of the Supreme Court and the Court of Appeal, the process can be initiated only by the chief justice and the president of the Court of Appeal, respectively.

All such cases must first be investigated by a local tribunal which determines whether the question of removal should be rejected or referred to the Judicial Committee of the UK Privy Council whose decision is final.

The provisions regarding Parish Judges (formerly Resident Magistrates) are somewhat broader since they authorise the governor-general, acting on the advice of the Judicial Services Commission, to not only remove but also exercise disciplinary control over judges, including the imposition of penalties, the nature of and procedures for which are spelled out in regulations made pursuant to the constitution.

There is no procedure for an ordinary citizen to file a complaint other than writing to the prime minister, chief justice, president of the Court of Appeal or Judicial Services Commission, the only authorities capable of initiating removal or disciplinary processes. Some countries have formalised such a procedure with prescribed forms and guidelines for filing complaints and a statutory body (usually comprised of judges themselves) to which such complaints are directed. Although this enhances accountability, it carries the risk of opening a doorway for frivolous or vexatious complaints that might serve only to undermine respect for and confidence in our judges and, hence, the judicial system itself.

The third component of judges' accountability has to do with their administrative performance and it is here that our judges have come in for some criticism. Complaints about the delays and inefficiencies in the justice system are widespread and verified by the experience of litigants.

The annual reports of the activities of the Court of Appeal, Supreme Court and Parish Courts that have been published since 2014, although deficient in some important aspects, are helpful in illustrating and explaining the traverse of cases through the court system.

The data paint a dismal picture. The number of cases disposed of versus the number of cases filed across all three levels of the court system averages just slightly over 50 per cent which means that more than 20,000 cases are being added to the backlog each year. Although there has been much public discussion about that backlog, its full extent is not known because only the Court of Appeal has published its figures. The Economic and Social Survey of Jamaica last reported in 2014 that the backlog in the Parish Courts was 377,965. No such data has been provided for the Supreme Court.

Some of those cases are so fossilized that they will never be heard, and even for those that may eventually be heard, justice may never be done for, as the late US Chief Justice, Warren Burger, observed, “inefficiency and delay in the delivery of justice drain even a just judgement of its value”.

We must guard against making scapegoats of the judges. They are just one of the players on the team. Their performance and level of efficiency depend on several factors — the resources that are provided, the availability and readiness of counsel, the quality and timeliness of investigations and reports that are requisitioned, the attendance and forthrightness of witnesses, etc. Judges cannot be chastised for not scoring if they are not given possession of the ball with a reasonable chance for a shot at the goal.

For example, the laborious process of judges, certainly at the Parish Court level which I have witnessed myself, having to record in longhand every word of the testimonies given can extend the duration of the trial process by as much as four or five times.

The preparation of judgements that can require dozens of pages and must be very fastidiously written since they are subject to review by higher courts, must be done outside of court time when the judge has to be presiding over other cases. I know of judges whose weekends and even vacations are spent primarily on writing judgements and on the review of evidence and research of case law that must precede it, not to mention the need for them to constantly update themselves on new developments in the interpretation and application of law.

Yet, the judges have a case to answer. In the Court of Appeal, for example, there were 849 pending appeals at the end of 2016, the reasons for which cannot be attributed to the non-receipt of transcripts and civil records. There were 73 reserved judgements or written reasons for judgements previously delivered that were outstanding, equivalent to a half of the cases completed.

The Supreme Court needs to explain why 720 cases are stalled in the Court of Appeal because it has not yet provided the transcripts and civil records. The public needs to be told the extent of the backlog in the Supreme Court and Parish Courts, appropriately classified to identify the causes, so that focus can be placed on what needs to be done and public pressure on who needs to do it.

The inadequacy of resources in the justice system is well known, but if we don't know the extent to which this factor extenuates, the provision of adequate resources will not necessarily solve the problem.

The Justice System Reform Task Force Report of 2007 contains 183 recommendations for improving the justice system. They are wide-ranging, covering not only judicial processes but also a host of other issues that impact the courts.

Notwithstanding that some of the recommendations would have required funding far beyond the ability of the Government to provide, even over the ensuing 10 years, some notable achievements have been made in implementing the recommendations. It would be useful for the Ministry of Justice to provide a status report on the implementation of these recommendations and an indication of the priority attached to those that are outstanding.

Among the measures introduced pursuant to those recommendations is the Court Management Services, which was established in 2009. It has a staff complement of 129 and has been allocated a budget of $368 million in the Estimates now before Parliament. Its intended purpose was to assume most of the administrative functions of the courts, allowing the judges to concentrate on their adjudicative responsibilities. However, it has limited control over the several other actors (investigators, counsel, complainants, witnesses, etc) that impact the passage of matters through the courts.

Significant among the recommendations, as well, is the use of appropriate technology to improve efficiency in the management of cases and the conduct of proceedings. Some measurable progress has been made in this regard and it is reflected in the data captured in the annual reports of the activities of the courts.

But much more can be done without costing a fortune. Greater use of technology could make a huge difference in the outcomes of the courts and, by increasing the throughput of cases, could mitigate the oft-cited need for more judges and courtrooms.

The long-awaited expansion of the Court of Appeal, another recommendation of the Task Force and for which legislative provisions were made in 2008, would allow a third panel of appeal judges to sit and it should not continue to be delayed, ostensibly, because of lack of courtroom space. It must be possible, if necessary, to provide interim facilities.

The Task Force's recommendation for greater use of the Lay Magistrates Court to ease the unmanageable burden of the Parish Courts needs to be more aggressively pursued. Parish Courts account for more than 70 per cent of the case load of the entire court system.

When I addressed the St Andrew Lay Magistrates Association last December, I suggested that we consider adopting a practice, long established in the United States, where senior law school students are allowed to practice in the courts under prescribed Student Practice Rules. It is designed to support experiential education and broaden access to justice and is not dissimilar to medical interns working in a hospital. They could be engaged to prosecute cases in the Lay Magistrates Courts under the supervision of the clerks of courts.

This would necessitate a significant increase in the number of justices of the peace trained in judicial processes and the payment of appropriate session fees to them. These costs, as well as the allowances to be paid to the law students, would perhaps be more than fully covered by the additional fines collected. In the US, the supervising attorney does not have to be physically present in court. Lay Magistrates Courts could be convened in community centres, church halls, school buildings during holidays, etc to avoid competing with the Parish Courts for space.

Although much of the cause of delays cannot be attributed to the judges, they have the power and need to assert greater discipline and control over the various actors whose lack of diligence frustrates the proceedings of the courts. According to the report for the Supreme Court for last year, there were over 10,000 adjournments. These include adjournments for continuance of cases but 63 per cent were classified as avoidable, ie, they were not “intrinsic to the natural progression of a case”.

The reasons for these avoidable adjournments vary. The absence or unreadiness to proceed of defence counsel tops the list (14.4 per cent), non-submission of reports and relevant documents (14.3 per cent), files misplaced (14.0 per cent), papers not served (10.4 per cent), non-attendance of witnesses (6.7 per cent). Similar data for the Parish Courts was not provided but the situation there is, no doubt, even more acute.

The Task Force called for a shift away from control over the process by litigants and their attorneys and for the courts to take greater control of the processes with a clear focus on outcomes. Judges need to crack the whip and persons who are obliged to facilitate the processes of the court must be made to understand and feel the consequences of inexcusable failure to do so.

How, in this conundrum, are judges to be held accountable? The chief justice and the president of the Court of Appeal are responsible for supervising the judges in their respective courts and, presumably, there are internal procedures that they use to evaluate their performance. The publication of annual reports is a good first step because it has provided information to the public that was not previously available, as well as statistical benchmarks by which the operations of the courts can be assessed. The recently retired chief Justice must be commended for having already posted online the annual reports for 2017 in respect of the Supreme Court and Parish Courts. I can't think of any government agency that has done so. The usefulness of these reports can be improved upon, especially in drilling down and pinpointing the causes of delays, indicating what action is being taken by the leadership of the courts themselves and shining the spotlight on other stakeholders from whom action is required. The public would then be better able to know where to cast its gaze and exert the weight of its opinion.

Another useful measure would be to upgrade the Judicial Conduct Guidelines that were adopted in 2014 into a Code of Judicial Conduct by which judges would be held accountable. I would suggest that the section on accountability be strengthened to reflect the commitment stated by the judges in their recent declaration.

What then seems to be lacking is the means by which the ordinary citizen who feels that he or she is being deprived of access to justice can, without incurring expensive legal fees, approach the system and be assured of a proper response. In a few countries, a special ombudsman is appointed to fulfil this role. In the United Kingdom, it is one of the responsibilities of the Courts and Tribunal Service, a body very similar in scope and function to the Court Management Service in Jamaica.

This obligation falls naturally to the Court Management Services, and its website does provide for public interaction and submission of complaints. Not much effort seems to have been made to educate the public about this facility. Nor has it been possible to assess how effective the process has been since, disappointingly, its last published annual report is for 2011/2012. But making that facility fit for purpose must be among the lowest of the hanging fruits.

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