24 April, 2008

Judicial Services

Judicial Services Commission: One of the most important Commissions under the Constitution is a JSC. One is provided for by section 67 of the Anguilla Constitution 1982. It consists of the Chief Justice, another judge, and the Chairman of the Anguilla Public Service Commission. This JSC is not to be confused with the Judicial and Legal Services Commission, which was established by the Courts Order in 1967 to serve the entire OECS. That appoints the judges of the High Court for the entire sub-region.

At present, the JSC advises the Governor on the appointment of the Magistrate and the Registrar of the Supreme Court for Anguilla. The Attorney-General is supposed, in constitutional theory, to be non-political. But, the JSC plays no role in advising on the A-G's appointment. The Governor appoints as A-G whomsoever he wishes, or more likely, whomsoever the FCO tells him to. The JSC also advises on the appointment of Crown Counsel to the A-G's Chambers.

Because there are so few judicial and legal appointments made in Anguilla, the present JSC functions, we can suppose, only very intermittently. Additionally, the appointments are made by the Governor only after “consulting” the JSC. He is not obliged to follow their advice. The result, we can surmise, is that the JSC is only a rubber stamp committee. It has no real decision-making power. The Governor and his advisers, probably the Attorney-General and the legal advisers to the FCO, make the final decision. This has had most unfortunate consequences in the past.

The Constitutional and Electoral Reform Commission recommended that this situation be changed. It urged that the type of Commission found elsewhere among the BOTs of the Eastern Caribbean Supreme Court system be adopted. We do not have very far to look. The new VI Constitution 2007 sets out the modern role of a JSC in a BOT. Section 94 is the relevant provision. We would do well to adopt it without much alteration. If we did, it would look something like this:

94. (1) There shall be for Anguilla a Judicial and Legal Services Commission which shall consist of—

(a) the Chief Justice, who shall be Chairman;

(b) another judge of the Court of Appeal or the High Court nominated by the Chief Justice after consultation with the Governor;

(c) the Chairman of the Public Service Commission; and

(d) two other members appointed by the Governor, acting in accordance with the advice of the Premier and the Leader of the Opposition who will each nominate one member, at least one of whom shall be a legal practitioner.

  1. For the purpose of subsection (1)(d), the Premier and the Leader of the Opposition shall alternate in nominating a legal practitioner, with the Premier making the first such nomination upon the commencement of this Constitution, provided that such nomination shall not be construed as precluding the nomination of two legal practitioners under subsection (1)(d).

  2. If the office of a member of the Judicial and Legal Services Commission appointed under subsection (1)(d) becomes vacant or if such a member is for any reason unable to perform the functions of that office, the Governor acting in accordance with the advice of the Premier or the Leader of the Opposition, as the case may be, may appoint another suitably qualified person to that office for the unexpired term of the previous holder of the office or until the holder of the office is able to resume his or her functions.

  3. Any decision of he Judicial and Legal Services Commission shall require the concurrence of not less than three members of the Commission, and the Commission shall take its decisions in such form and manner as it may determine.

  4. In the exercise of its functions, the Judicial and Legal Services Commission –

  • shall not be subject to the direction or control of any other person or authority; and
  • may regulate its own procedure.”

Note the major changes from the present arrangements. One, the Commission is enhanced by the addition of two persons from within the community. Two, it is democratised by having these two members appointed on the advice of the Premier and the Leader of the Opposition. Three, it is professionalised by having at least one representative of the Bar Association. Four, its decision-making power is guaranteed by having its independence from the Governor and the Ministers entrenched in the Constitution.

There is no reason why we should not get such a Commission, if we ask for it. One, a majority of Anguillians who think about this subject want it so. Two, it is not in Britain's interest to retain a one-man power to appoint the Commission. Three, a modern JSC has previously been approved for other BOTs, so we are not asking for anything unusual. It is clear that if the Chief Minister's negotiating team insists on this type of modern Commission, the Foreign and Commonwealth Office will not put up much more than token resistance.

This goes a long way to what most thinking people mean by “full internal self-government”. That phrase does not mean, as some would have it, giving the elected representatives more power. If it meant just that, it would be better titled “fully guaranteed self-destruction of our liberties”.

An independent local JSC can be a guarantee of independent and professional judicial and legal services for the community. Such independence is one of the bulwarks of liberty under a modern written Constitution.

1 comment:

  1. Remember that there is a proposal from the Chief Justice to take the magistracy from the local administration and place it under the regional Judicial and Legal Services Commission. The new constitutional provision should include something like, “while Magistrates continue to be locally appointed” or some such like that will permit the new development when it happens.

    Of course, it is possible that the instrument to make the magistracy part of the regional judiciary, when it happens, will have the effect of amending the local Constitutions, anyway.


Note: only a member of this blog may post a comment.