Journal of the Commonwealth Magistrates’

and Judges’ Association

Vol 16 no. 4 December 2006

COMMONWEALTH MAGISTRATES’AND JUDGES’ASSOCIATIONEstablished in 1970

Registered Charity (LTK) No. 800367 Company Limited by Guarantee Reg. No. 1942930

PATRONHer Majesty the Queen

PRESIDENTTan Sri Dato' Justice Siti Norma Yaakob (Malaysia)

EXECUTIVE VICE-PRESIDENT Rt. Hon. Sir Henry Brooke

HON. TREASURERMr Paul G Norton JP

IMMEDIATE PAST PRESIDENTThe Rt. Hon. Lord Hope of Craighead PC

LIFE VICE PRESIDENTSThe Hon. Magistrate David ArmatiThe Hon. Justice Kipling Douglas

The Hon Judge Sandra OxnerMr Michael Lambert FCA

CARIBBEAN NORTH ATLANTIC & MEDITERRANEANREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENT Justice Norma Wade-Miller Sheriff Douglas Allan (Scotland) COUNCIL MEMBERS COUNCIL MEMBERS M. E Birnie Stephenson –Brooks Justice John Vertes (Canada)The Hon. Richard Williams Mrs Jean Hanson Hills (England & Wales)

EAST CENTRAL AND SOUTHERN AFRICA PACIFICREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTChief Magistrate Joe Raulinga (South Africa) Mr Samiuela Palu (Tonga)COUNCIL MEMBERS COUNCIL MEMBERSMrs Rosemelle Mutoka (Kenya) Deputy Chief Magistrate Michael Hill (Australia)Justice Christie Liebenberg (Namibia) The Hon. Robin Millhouse (Kiribati)

INDIAN OCEAN WEST AFRICAREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTMr Nicholas Ohsan-Bellepeau (Mauritius) Magistrate Paul Evande Mwambo (Cameroon)COUNCIL MEMBERS COUNCIL MEMBERSMr Nithiyanantham Murugesu (Malaysia) The Hon Mr Justice Mensah Quaye (Ghana)(Vacancy) Chief Magistrate Ahmed Mhmd Abubakar

(Nigeria)

CO-OPTED COUNCIL MEMBERSJustice Christakis Eliades (Cyprus)

Sir Phillip Bailhache (Jersey)Mr Wilson Masulu Musene (Uganda)

SECRETARY GENERAL: Dr Karen BrewerAuditors: Alliotts

EDITOR OF COMMONWEALTH JUDICIAL JOURNALProfessor David McClean

EDITORIAL BOARDDr Peter Slinn (Chairperson) Judge David PearlMrs Nicky Padfield Mr Geoffrey CareMrs Betty Mould Iddrisu Correspondents: Mr Christopher Rogers,

His Worship Dan Ogo

CMJA, Uganda House, 58-59 Trafalgar Square, London WC2N 5DX, U-K. Tel: +44 207 976 1007Fax: +44 207 976 2394 Email: info@cmja.org website: www.cmja.orgThis journal is generously funded by The Commonwealth Foundation

COMMONWEALTHJUDICIALJOURNAL

CONTENTS

EDITORIAL 2

Profile: Sir Henry Brooke 4

Murray Gleeson The Right To An Independent Judiciary 6

Geoffrey Care Udal Law And Orkney And Shetland:Colonialism in our own back yard? 17

Elneth Kentish Protection Of Minority Rights By The Courts:The Barbados Experience 22

Kathleen McGowan The Struggle For Judicial Independence In Canada 28

Gordon Ward From Upheaval To Insurrection. The Court’s Role: A South Pacific Perspective 31

Mary Angawa Dealing With Corruption In The Judiciary:The Kenyan Experience 37

LAW REPORTSR v Te Kahu (New Zealand)Reilly v Alberta (Canada)Ontario Deputy Judges’ Association v Ontario (Canada)Forge v Australian Securities And Investments Commission (Australia)McKenzie v British Columbia (Minister of Public Safety and Solicitor General)(Canada)

BOOK REVIEWCorruption and Misuse of Public Office

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Journal of theCommonwealth Magistrates’ andJudges’ Association

Vol 16 No 4 December 2006

The last issue of this Journal contained anarticle by the Honourable Joseph SindeWarioba, a Justice of the newly-establishedEast African Court of Justice. That court hasnow handed down its first judgment, onewhich shows the value of, and the (proper)limitations on the powers of, such an interna-tional court.

In Mwatela v East African Community (App. 1of 2005), three members of the East AfricanLegislative Assembly challenged the validity ofa meeting of the Sectoral Council on Legal andJudicial Affairs held in September 2005 andthe decisions taken by that meeting in relationto four Bills pending before the Assembly. Allwere Private Member’s Bills.

The Council of Ministers of the Communitydecided in 2004 that policy oriented Bills oughtto be submitted to the Assembly by theCouncil, as opposed to being submitted asPrivate Member’s Bills. The Council thereforedecided to assume responsibility for the fourpending Bills. After advice from the SectoralCouncil, at the challenged meeting, it withdrewtwo Bills from the Assembly and requested thatproceedings on the two other Bills be stayed.

Article 14 of the Treaty empowers the Councilto establish ‘from among its members’ SectoralCouncils to deal with particular matters. TheCouncil decided in January 2001 to constitutemeetings of Attorneys-General of the PartnerStates as a Sectoral Council on Legal andJudicial Affairs. The Court held that in sodoing the Council acted ultra vires, for two ofthe Attorneys were not members of theCouncil. Further, at the September 2005meeting, two Attorneys were represented bydeputies: there was no power to rely ondeputies, and the individuals concerned, notbeing Ministers, were ineligible to be membersof the Council of Ministers and so of SectoralCouncils.

The Court then had to consider what was theposition of the Bills before the Assembly. TheInter-University Bill as well as the Immunitiesand Privileges Bill had received a First Reading,and had in the Court’s view, become propertyof the Assembly. Accordingly, the Court couldsee legal basis for the purported decision of the

Council to take over and withdraw Bills. Oncea Bill was in the Assembly, its permission wasneeded to withdraw a Bill, whether the Bill inquestion had been a Private Member’s Bill or aCommunity Bill.

The Court referred to Article 59(2)(a) of theTreaty which declares that the Assembly mustnot:

‘Proceed on any Bill, including an amend-ment to any Bill that, in the opinion of theperson presiding, makes provision for anyof the following purposes:

(i) For the imposition of any charge uponany fund of the Community;

(ii) For the payment, issue or withdrawalfrom any fund of the Community ofany moneys not charged thereon or theincrease in the amount of any suchpayment, issue or withdrawal;

(iii) For the remission of any debt due tothe Community’.

It was irrelevant how a Bill was introduced: theprovision addressed the legislative competenceof the Assembly. The Court noted that todetermine the applicability to the Bills of thisprovision would have required it to delve intothe provisions of the Bills in great detail. TheCourt deemed it wise not to make such aninvestigation but to leave it for whoever wasaggrieved with any of the Bills to raise thematter in the Assembly.

This seems, with respect, an admirableexample of a Court resolving what was clearlya highly charged political issue by clear-headedinterpretation of the Treaty, which helpedclarify the roles of the institutions of theCommunity. The Court also showed a properrespect for the powers of the Assembly tomake its own judgment in respect of Billsbefore it.

The cases noted in our Law Reports sectiontouch on a number of sensitive issues. MurrayGleeson, the Chief Justice of Australia, in hiswide-ranging paper on judicial independence,mentions a pending case on the controversialpower to appoint Acting Judges. That case,Forge v Australian Securities and Investments

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EDITORIAL

Commission, is noted in this issue. Thechallenge to the practice followed in NewSouth Wales failed, but we have muchsympathy with the strong dissent of Kirby J.We note a New Zealand case, R v Te Kahu,indecisive in itself but showing that the issue isa live one in that jurisdiction too. McKenzie vBritish Columbia applies the (unwritten)constitutional principle of judicial independ-ence to members of tribunals exercisingcourt-like functions.

Independence of the judiciary is underlined inthe Latimer House Guidelines. They have beenused as a point of reference in a critique by theCMJA of proposals concerning the Scottishjudiciary. The proposals for judicial appoint-ments are not compatible with the Guidelines:for example, the judiciary itself would have norole in appointing any members to the JudicialAppointments Commission. Other concernsinclude imprecise drafting of possible discipli-nary offences by judges. The CMJA has voicedsimilar concerns in relation to the proposednew Constitution for Gibraltar, about whichthe Chief Justice spoke in critical terms at theopening of the legal year in October. The draftwould also enable the Governor to disregardthe advice of the Judicial Services Commissionin certain cases. Beyond these particularconcerns lies an important question: theGuidelines were endorsed by CommonwealthHeads of Government; should they not befollowed in spirit and in letter?

Our last issue noted a case in the SupremeCourt of Canada about the method of fixingjudicial remuneration. The issues rumble on:Ontario Deputy Judges’ Association v Ontariois the latest example, and a paper by JusticeKathleen McGowan, also in this issue, sets outthe background.

That trips abroad for Conferences are highlydesirable parts of judicial experience is nodoubt the unanimous view of those whoattended the very successful CMJA triennial

conference in Toronto a few months ago, fromwhich a number of papers in this issue come.But there is now authority for the proposition,provided by what was in other respectsunseemly litigation: Reilly v Alberta, notedherein.

The articles come from almost every continentand cover a wide range of issues. Issues aboutthe rights of Muslims are currently the subjectof much public debate in the United Kingdom,and there are echoes of similar issues, as wellas those affecting Rastafarians, in JusticeKentish’s paper from Barbados. There is aninformed view of the anti-corruption efforts inKenya from Justice Angawa. Two papers havean island setting: Geoffrey Care’s examinationof ‘udal law’ will be a wholly new topic tomany. As Justice Ward of Fiji remarks, so(happily) will the problems of dealing withinsurrections and the declared abrogation ofthe Constitution under which judges sit;anyone facing that situation should recall thewise advice he offers.

I end this Editorial with some items of news.One is of the appointment of the Hon JusticeCharles Mkandawire of the High Court ofMalawi as the founding Registrar of the SADCTribunal, the seat of which is to be in Namibia.We hope to publish an account of his work ina future issue. A former member of the CMJACouncil Justice Booshan Domah of theSupreme Court of Mauritius has beenappointed to act concurrently as President ofthe Seychelles Court of Appeal. Our congratu-lations to both.

The second is of the establishment of theInternational Law Book Facility (ILBF). It isbased in the UK and seeks to provide printedlegal texts to legal professional bodies, advicecentres, pro bono groups, law schools, institu-tions and individuals involved in access tojustice in common law jurisdictions of Africa,Asia and the Caribbean. Further informationcan be found on its website, www.ilbf.org.uk

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The Editor welcomes contributions of previously unpublished work, such as articles, reviews, essays.Contributions, ideally no more than 3,000 words, should be sent to the Editor, Commonwealth JudicialJournal, c/o CMJA, Uganda House, 58-59 Trafalgar Square, London WC2N 5DX.

The views expressed in this Journal are not necessarily the views of the Editorial Board, but reflect theviews of individual contributors.

I succeeded Michael Lambert as ExecutiveVice-President of CMJA at the TorontoConference in September, and the editors haveasked me to say something about myself andmy links with the Commonwealth.

I was born into a political family, and myfather and my brother were both CabinetMinisters in the UK in their time. This mayhave helped me to understand the politicalimportance of the Commonwealth, although Ihave never been involved in party politicsmyself.

My first direct involvement withCommonwealth matters came in 1961. I wasthen 25, and I had just obtained a non-lawdegree at Oxford. While I was studying for Barexams (which you could do by correspondencecourse in those days), Lord Denning asked meto base myself at Cumberland Lodge, nearWindsor, and help him to encourage the Innsof Court to bring large groups of bar studentsfor long weekends there, to enable them tomeet judges and other senior members of theirInns. About 70% of all the bar students inLondon then came from the overseasCommonwealth, and during the course of thatjob I met people from many different parts ofthe world. The present Chief Justice of Nigeria,Justice Alfa Belgore, spoke to me warmlyabout those days when I visited Abuja inNovember.

As chairman of the Bar Council’s RaceRelations Committee 30 years later I encoun-tered plenty of English barristers who had beenborn in the overseas Commonwealth, or whoseparents had emigrated from a Commonwealthcountry to Britain. When I moved from thatjob to the task of teaching English judges andmagistrates about the different people fromdifferent cultures who appeared before them aswitnesses or defendants, I used to warn themnot to rely on stereotypes. People fromMonserrat might be very different from peoplefrom Jamaica, and the countries of Africacontained within them many different tribalcultures, and they would quickly learn that alittle learning might be a dangerous thing.

During my 18 years as a judge, I visitedCanada (four times), Australia, India, Cyprus,Ghana, Barbados and Singapore, and I havereceived many visits from judges in those andother countries when they have come toLondon.

In Canada and Australia I took part in thebiennial conferences of the World WideCommon Law Judiciary series. This series wasstarted by US judges in Washington DC in1995, and has afforded 30-40 of us the oppor-tunity to meet every other year to discussmatters of contemporary interest to thejudiciary. Relations with politicians and themedia, developments in the field of IT, anddifferent aspects of judicial education havealways featured high on the list of the topicswe have discussed. Next year I intend to speakabout Alternative Dispute Resolution, a topicwhich has moved quickly up our judicialagendas in recent years.

In India and Barbados I took part in multi-disciplinary conferences which centred roundcriminal justice and alternatives to custody. Isee that I started my address to the Bridgetownconference in 1994 by saying:

“I have been asked to speak to you to-dayabout sentencing trends in common lawcountries. I am an English judge, and Iwill have very little to say about othercommon law countries, which have each

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PROFILE: THE RT. HON. SIR HENRY BROOKE

Executive Vice President

gone their separate ways since achievingtheir independence from England. Everycountry possesses its own historical tradi-tions and its own peculiar cultures, whichin turn affect its people’s attitudes towardscrime and punishment, so that one wouldexpect different countries to developdifferently. The one thing the common lawcountries possess is a law based ultimately,and sometimes more than two hundredyears ago, on the common law ofEngland.”

In Canada, Australia and Cyprus I was adelegate at the conferences of theCommonwealth Lawyers’ Association, and Ialso attended their 2005 conference inLondon. At Melbourne in 2003 I spoke aboutthe way that judgments from all over theCommonwealth are now being posted on theInternet on the sites at www.bailii.org orwww.worldlii.org free of charge. I returned tothis theme in an article published in theCommonwealth Lawyer in 2005 when I said:

“Another great blessing of moderntechnology is that when we post an impor-tant judgment on a website at the time weare handing it down in court, we knowthat it will then be communicatedelectronically throughout the country –indeed, throughout the world - the sameday to everyone who has a “need toknow”, and this does not only meanlawyers.”

In Singapore and Australia, and also duringvisits to Washington DC, I marvelled at theway that those jurisdictions were makingconfident progress in using applied technologyin their courts. At the CMJA regional confer-ence in Ghana in August 2005, I described thethoughtful way in which English judicialtrainers have been developing and imple-menting a training strategy to ensure that moreand more of our judges would be adept atusing PCs in aid of their judicial work.

Turning to CMJA’s affairs, on my visit toToronto in September 2006 it became veryobvious that the CMJA must now increase itsindividual membership. We cannot balance ourbooks by relying solely on the income from“member associations”, some of whom arerather slow in paying. I hope that everymember of CMJA will do their best to persuadeother judges and magistrates to join us.

Finally, I told the General Assembly at thatconference that I possessed none of MichaelLambert’s accountancy skills. The knowhow Iwill be bringing to this post is different. But weare united in our belief in the importance of theRule of Law and the independence of thejudiciary, which the CMJA exists to foster andpreserve. As Executive Vice-President it is myrole to act as the Council’s “eyes and ears” inour dealings with our excellent smallSecretariat. I will do my best to discharge thetrust the Council has shown in electing me.

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Judicial power is ‘the power which every sover-eign authority must of necessity have to decidecontroversies between its subjects, or betweenitself and its subjects, whether the rights relateto life, liberty or property’ (Huddart Parker &Co Pty Ltd v Moorehead (1909) 8 CLR 330 at357 per Griffith CJ). Not only are citizenssubject to such power; they have the right toinvoke its exercise in their own interests. Likeall forms of governmental power, it exists fortheir benefit. More than 200 years ago,Marshall CJ said, in Marbury v Madison (5 US(1 Cranch) 137 (1803) at 163):

‘The very essence of civil liberty certainlyconsists in the right of every individual toclaim the protection of the laws, wheneverhe receives an injury. One of the firstduties of government is to afford thatprotection.’

Justiciable controversies, amenable to theexercise of judicial power, take various forms.They often involve the government itself. Acriminal trial for a serious offence is conductedas a contest between the executive governmentand a citizen. Civil disputes arise not onlybetween citizens, but also between citizens andthe executive government. In a federal system,based upon a written constitution dividingpower between a central authority andregional authorities, disputes arise betweencitizens and governments, and betweengovernments themselves, concerning the limitsof power. The Universal Declaration of HumanRights, art 10, the International Covenant onCivil and Political Rights, art 14(1), and theEuropean Convention on Human Rights, art6(1) declare that, in the determination of civilrights and obligations, and criminal responsi-bility, all people are entitled to a fair and publichearing by a competent, independent andimpartial tribunal established by law.

Independence is not a perquisite of judicialoffice, for the personal benefit of judges. Theimpartial administration of justice according tolaw is a power and a duty of government. Thejudges to whom that responsibility is given

must be free of any external influence otherthan the law itself. The independence of judgeswas said recently by the Privy Council to be ‘allbut universally recognised as a necessaryfeature of the rule of law’ (IndependentJamaica Council for Human Rights (1998) Ltd& Ors v Marshall-Burnett [2005] UKPC 3).Article 4 of the Beijing Statement of Principlesof the Independence of the Judiciary assertsthat independence is essential to the properperformance by the judiciary of its functions ina free society observing the rule of law. It affectsboth the quality of judicial performance andthe acceptability of decisions. Confidence in theadministration of justice depends upon ageneral assumption that judges act according tolaw, and free from pressure or interference of akind that might deflect them from their duty.

The values of impartiality and independenceare closely related. Judges take an oath to doright by all persons, without fear or favour,affection or ill-will. Their capacity to honourthat obligation does not rest only upon theirindividual consciences. It is supported by insti-tutional arrangements. Citizens are notrequired to have blind faith in the personalintegrity of judges; and judges are not requiredto struggle individually to maintain theirimpartiality. The Constitution, written orunwritten, of a society provides for the meansof securing the independence and impartialityof judges.

Powerful litigants, private interests, or socialinterest groups, should be unable to subjectjudges to improper pressure. The executivegovernment, in one or other of its manifesta-tions, is itself frequently a party to litigation.Furthermore, in a representative democracy,the executive both responds to, and exerts,political pressure. Isolating the exercise ofjudicial power from executive pressure orinterference is, therefore, the primary concernof constitutional arrangements for independ-ence. The strictness with which legislative,executive, and judicial powers are separatedvaries in different parts of the Commonwealth

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THE RIGHT TO AN INDEPENDENT JUDICIARY

The Hon. Justice Murray GleesonChief Justice of Australia. A paper given at the Commonwealth Law Conference, September 2005.

of Nations. In Australia, the CommonwealthConstitution requires, at the federal level, adegree of separation greater than that whichexists at the State level. Even so, it is acceptedas a general principle, in all common law juris-dictions, that the judicial power of governmentshould be vested in an authority which isindependent of the legislature and the execu-tive. It is in the application of that generalprinciple that issues arise.

In human affairs, independence is rarelyperfect. In the business of government, no onepart can exist in isolation from the others. Yet,because it is the right of citizens to have justi-ciable controversies resolved according to lawby an independent tribunal exercising govern-mental authority, the concept of anindependent judiciary must have a reasonablycertain minimum content. It is possible toapply a test of independence to arrangementsfor the exercise of judicial power, whileacknowledging that there are areas for legiti-mate choice. The Commonwealth provides nosingle model of personal or institutionalarrangements for judicial independence.Constitutional and legislative choices are influ-enced by history, local conditions, and politicalrealities, as much as by legal theory. Yet thereare standards by reference to which the right inquestion can be given content.

Justiciable controversiesWhen Alexander Hamilton (in The Federalist,No 78) described the judiciary as the branch ofgovernment least dangerous to the politicalrights given by the United States Constitution,he said that, unlike the legislative and execu-tive branches, it has neither force nor will, butmerely judgment. The distinction betweenjudgment and will is central to the legitimacyof the exercise of judicial power. It also affectsthe reach of that power. The judiciary does notset its own agenda. Courts decide controver-sies, but they have only a limited capacity todecide what controversies are justiciable. Ingeneral, and subject to any constitution, it isfor Parliament to decide what matters may callfor the exercise of judicial power. The qualifi-cation is important. In a federal system, thecapacity of the courts to resolve disputes aboutthe meaning of the written constitution,including disputes about the distribution andlimitation of legislative and executive power, isa necessary aspect of the system itself. In

Australia there has never been a sovereignparliament. Before Federation, courts wereaccustomed to declaring the limits of coloniallegislative power. Since Federation, the judicialpower to decide the meaning of theConstitution has been treated as self-evident.

Furthermore, Charters or Bills of Rights,according to their forms, create potential issuesfor judicial decision. The scope for judicialreview of legislative and administrative actionmay wax or wane, but the constitutionalarrangements of most members of theCommonwealth involve an irreducibleminimum. The concept of the rule of law,whether operating as a constitutional assump-tion, or as part of the common law through theprinciple of legality, or as an ideological fetterupon legislative action, itself gives content to arequirement of justiciability. It does not,however, mean that all forms of dispute mustbe resolved by legal process. Legislation maycreate, define, and limit many rights andobligations in such a fashion as not to involvecurial intervention. The apparatus of civiljustice is expensive and cumbersome, and therule of law does not demand that all questionsaffecting entitlements or liabilities be decidedby courts. In practice, administrative decisionsaffect the rights of most citizens to a greaterextent than judicial decisions.

It is accepted generally that the administration ofcriminal justice is essentially a field reserved forjudicial power (Liyanage v The Queen [1967] 1AC 259). Even in that area, legislatures have thecapacity for choice. Diversionary schemes,especially for juvenile offenders, may beemployed to direct certain forms of delinquencyaway from the court system. Administrativepenalties are widely used as a substitute forcriminal procedure, even in the case of someserious offences, such as tax evasion.

In all jurisdictions, tribunals which form partof the executive rather than the judicial branchof government are employed in functions thatmight alternatively be given to courts.Australia had a long history of centralizedwage-fixing by industrial tribunals. Assigningdecisions of those tribunals to executive orjudicial power was a problem that led to somemajor constitutional cases. Specialist tribunals,whose members lack many of the indicia ofindependence customarily associated withjudges, are created by parliaments in all juris-

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dictions. Only the innocent would supposethat it never occurs to legislators that thiscould be a means of circumventing judiciaryauthority. The independence of courts is notalways welcomed by those of whom they areindependent. It may be seen as a restrictionupon a government’s capacity to govern. Theresponse may be to deprive courts, not of theirindependence, but of their jurisdiction. Thecapacity of the political branches of govern-ment to limit the scope of judicial authority, byproviding for dispute resolution by tribunalsand agencies which form part of the executive,cannot be ignored. At the same time, itincreases the importance of judicial review ofadministrative action.

The availability of judicial review of thedecisions of administrative tribunals, and thepossibility of immunisation against review bylegislative devices such as the privative clause,are matters that go beyond the scope of thispaper. However, they form part of the contextin which relations between the three branchesof government operate.

How much independence?In recent years, courts in Australia (e.g., Kablev Director of Public Prosecutions (NSW)(1996) 189 CLR 51; North AustralianAboriginal Legal Aid Service Inc v Bradley(2004) 78 ALJR 977), Canada (e.g., Valente vThe Queen [1985] 2 SCR 673; R v Beauregard[1986] 2 SCR 56; R v Généraux [1992] 15 CR259; Reference re Remuneration of Judges ofthe Provincial Court of Prince Edward Island[1997] 3 SCR 3), South Africa (Van Rooyen vThe State 2002 (5) SA 246 (CC)) and Scotland(Starrs v Ruxton (2000) 2 SLT 42), and thePrivy Council in a Caribbean appeal(Independent Jamaica Council for HumanRights (1998) Ltd v Marshall-Burnett [2005]UKPC 3) have had to measure arrangementsfor particular courts against constitutionalrequirements of judicial independence andimpartiality. Noting the variety of arrange-ments that exist in practice, andacknowledging the room for legislative choice,the courts have nevertheless identified certainessential requirements for both the personalindependence of judges and the institutionalindependence of courts. They involve freedomfrom external interference in decision-makingin particular cases, and in the administration ofcourts, although those two subjects overlap.

Security of tenure, and financial security, areessential for the personal independence ofjudges, and are commonly provided for specif-ically in written constitutions (e.g., AustralianConstitution s.72). Article III of the UnitedStates Constitution has been a model for provi-sions of this kind. On the other hand, therequirements for institutional independenceare rarely specified.

In the United States, federal judges areappointed for life. Some State judges areelected. Most Commonwealth jurisdictionsmake provision for compulsory retirement at acertain age. The Act of Settlement provisionsconcerning removal of judges of superiorcourts have been followed widely, but proce-dures for complaints against judges, and forwhat recent United Kingdom legislation(Constitutional Reform Act 2005) calls ‘disci-pline’, differ. In some Commonwealthjurisdictions, the appointment of judges forfixed, renewable terms is accepted. InAustralia, the Constitution does not permit theappointment of acting judges to federal courts,but in some Australian States, as in the UnitedKingdom, such appointments have beencommon. A constitutional challenge to thatpractice is awaiting hearing. In Scotland, thepractice of appointing temporary sheriffs wasfound to be incompatible with the EuropeanConvention on Human Rights (Starrs vRuxton 2000 SLT 42).

The assignment of business within a court,although from one point of view administra-tive, bears so directly upon decision-makingthat it is essential that it be within judicialcontrol. The same is true of certain otheraspects of the conduct of a court’s business,such as fixing times and places for sitting. Inpractice, however, some of those matters are soclosely tied up with the provision of resourcesby the executive that co-operation with thepublic or civil service is necessary.

FundingThis brings me to the question of the provisionand application of funds. Most courts are notself-funding. Nor should they be. The conceptof ‘user-pays’ has only limited relevance toaccess to justice. When a court resolves adispute between two private litigants, it doesso in the interests of the entire community, andin the exercise of governmental power. Courtsare not merely publicly funded dispute resolu-

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tion facilities. It is difficult to know who mightbe regarded as the users of the services of acriminal court. Most courts cannot be fullyindependent financially. They must obtain theirresources from the other branches of govern-ment. Yet the arrangements made concerningthose resources may affect the capacity ofcourts to fulfil their responsibilities; and theymay also affect both the reality and the appear-ance of the freedom of courts from executiveinterference. Constitutions operate at the levelof convention as well as law, and considera-tions of propriety, as well as enforceableobligation, come into play.

Within Australia, practice varies. The reasonsfor the differences are historical rather thanideological. The federal courts, including theHigh Court, have one-line budgets. Theyreceive an amount annually by parliamentaryallocation. The judges, assisted by the courts’internal administrators, make decisions aboutthe application of that amount. This gives thecourts themselves the ability, within the limitsset by the total funding received, and by neces-sary commitments such as staff salaries andmaintenance of buildings, to set their ownpriorities for expenditure. The application offunds is subject to parliamentary scrutiny. Nodoubt, unjustifiable expenditure in one yearwould result in a reduction in funds madeavailable in the next year. Even so, the abilityto set priorities is a significant form ofindependence. With the exception of SouthAustralia, State and Territory superior courtsare administered as cost centres in a govern-ment department. Although there isconsultation with the judiciary, expenditurepriorities are decided ultimately by the execu-tive. Having worked in both systems, mypreference is for the federal model.

Subordinate courtsSo far, I have confined attention to superiorcourts, and the judges of those courts. Yet much,indeed most, judicial power is exercised byjudicial officers who are not judges of superiorcourts. How do the principles that flow from theright to an independent judiciary apply to them?Do those principles allow for the possibility thatsome courts, and some judicial officers, may beless independent than others? Are the rights ofcitizens to the exercise of judicial power byimpartial and independent tribunals sufficientlyprotected by a system that gives a full measure

of independence to a small class of superiorjudges, equipped with supervisory powers, anda lesser measure of independence to otherjudicial officers who attend to most of thebusiness of the justice system?

In most Commonwealth jurisdictions, judicialofficers at different levels of the court systemtraditionally have been subject to differentregimes of appointment and removal, tenure,remuneration, and performance review. Ofcourse, within many courts there are decision-makers, such as registrars and clerks, who arenot judicial officers, but who performfunctions ancillary to those of the judges.Commonly, they are members of the publicservice, employed by the executive branch.Furthermore, even countries whose constitu-tions involve a relatively strict separation ofpowers entrust particular, usually specialised,forms of decision-making and dispute resolu-tion to tribunals that operate outside themainstream judicial system. In the UnitedStates, for example, most federal judges areappointed under, and enjoy the tenure andindependence conferred by, Article III of theConstitution, which deals with the judicature.Nevertheless, pursuant to Article I, dealingwith the legislative branch, Congress hasconferred adjudicative authority upon territo-rial courts, military tribunals, a court ofveterans’ appeals, and a court of federalclaims. Judges of those courts do not have lifetenure, like Article III judges, and they do notall enjoy the same constitutional protectionagainst salary reduction.

In the United Kingdom, the Act of Settlementprovisions concerning judicial tenure appliedto judges of superior courts. Much judicialpower was exercised by judicial officers towhom those provisions did not apply. Othersare better qualified to discuss the regime estab-lished by the Constitutional Reform Act 2005.

The most familiar example of the problemconcerns magistrates. In Australia, as in anumber of other parts of the Commonwealth,the position of the magistracy continues toevolve. Until recently, there was no federalmagistracy. Summary federal judicial power,civil and criminal, was exercised by Statestipendiary magistrates. They, in turn, untilrelatively recently, were part of the State publicservice. They exercised many administrative, aswell as judicial, functions. Unlike judges, few of

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them came from the private legal profession.Until the middle of the 20th century they didnot have to be qualified to practise law. Mosthad spent their working lives in the publicservice. They were appointed by an official ofthe Attorney-General’s Department. They weresubject to Departmental discipline. Theirsalaries and superannuation arrangements werefixed within the public service, and they weregraded in accordance with performance reviewsby Departmental officers. Although exercisingextensive judicial power, they were firmlywithin the executive branch of government.

That has now changed. The change in thestatus and independence of the magistracy isone of the most significant and beneficial devel-opments of the last 30 years in the Australianjustice system. In New South Wales, theJudicial Officers Act 1986 took magistrates outof the executive, and placed them in thejudiciary. Magistrates, like Supreme Court andDistrict Court judges, can now be removedonly by the Governor, upon an address of bothhouses of Parliament. They are subject to thesame complaints procedures, administered bythe Judicial Commission of New South Wales.Some aspects of their remuneration, especiallyin relation to superannuation, continue toreflect the public service background of themagistracy, but, since 1986, an increasingnumber of magistrates have been recruitedfrom the practising profession. Although therehave been pockets of resistance, the trend hasbeen towards assimilating the position ofmagistrates, in all matters concerning theirindependence, with that of judges. Similardevelopments have occurred in otherAustralian States. The new Federal MagistratesCourt was created under Chapter III of theConstitution. Its members have the sameprotection against removal as other federaljudges, and there is a substantial overlappingof jurisdiction between the new court and theFederal and Family Courts. The remunerationof all federal judges and magistrates is fixed bythe same tribunal, whose decisions are madeopenly and independently, subject only to thepossibility of parliamentary disallowance.

In Van Rooyen v The State (2002 (5) SA 246(CC)), the Constitutional Court of SouthAfrica considered whether the South AfricanConstitution requires that all courts in thejudicial hierarchy must have their independ-ence protected in the same way and to the

same degree. That question was answered inthe negative. Emphasis was placed on thesupervisory role of the higher courts, and theprotection which that gives to the courts whoseoperations are subject to such supervision. Thedecision turned upon close scrutiny of therelevant South African legislation, in thecontext of South African society. In 2004, inNorth Australian Legal Aid Service Inc vBradley ((2004) 78 ALJR 977), a caseconcerning remuneration arrangements for theChief Magistrate of the Northern Territory, theHigh Court of Australia acknowledged thecontinuing evolution in the position of magis-trates in Australia, and held that the legislationthere in question, and the arrangements madepursuant to that legislation, did not offendprinciples of judicial independence.

In the past, there has been general acceptanceof different degrees of independence amongthose exercising judicial power. The theoreticalbasis of that acceptance is likely to besubjected to closer scrutiny. Realities must beaccommodated; change will not proceedevenly; and issues are blurred by the difficultyof drawing a clear dividing line betweenjudicial and other decision-makers. Even so, ifthe right of citizens to an independent judiciaryis to be recognized in full measure, in thelonger term it may be difficult to justify signif-icantly different levels of independence withinthe permanent judiciary.

I leave to one side the matter of the widespreaduse, in many jurisdictions, including the UnitedKingdom, of acting or temporary judicialofficers. In practice, much judicial power isexercised by people whose services are engagedon a part-time basis. In some courts, this is amethod of dealing with temporary shortages ofjudge-power. In others, it is a permanentfeature of the system. Because this is thesubject of pending litigation in Australia, I willsay no more about it.

AppointmentAlthough in some civil law countries there issubstantial involvement of judges of highercourts in the appointment, supervision anddiscipline of judges of lower courts, in thecommon law tradition judges are appointed bythe executive government and, at least in thecases of judges of superior courts, the power ofremoval is with Parliament. In these respects,as in the matter of resources, judges cannot be

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completely independent of the other branchesof government.

As to appointment, customs and proceduresvary. Whatever method is adopted, the right toan impartial and independent judiciaryrequires that neither the reality nor the appear-ance of impartiality or independence becompromised. This leaves room for choice.How it relates to a practice of popular electionof judges is a matter that does not, I think,arise within the Commonwealth. Nor, at leastso far, are we concerned with a procedure ofparliamentary interrogation of prospectiveappointees. In Australia, in 1913, the govern-ment in Canberra sounded out a prospectiveappointee to the High Court, Mr Piddington,on his views about the federal balance. He saidhe was a strong centralist. He was appointed.When the exchange became publicly known,he felt obliged to resign. Some recentcanvassing by the media of the possibility thatan Attorney-General might question prospec-tive appointees, privately, about their legalinclinations appears to overlook three matters.First, there is the unfortunate case of MrPiddington. Secondly, the most frequentlitigant before the High Court is theCommonwealth Attorney-General. Thirdly,most people appointed to the High Court havealready had substantial judicial experience,and their judicial record is publicly available.

No one suggests that a record of past decision-making compromises the future impartiality ofa judge. Even the fact that a judge has decidedthe same point of law on an earlier occasiondoes not mean disqualification from a latercase that raises the same point. The systemrequires an open, not a blank, mind. It assumesthat judges are amenable to persuasion. What,however, of expressions of legal opinion to anappointments authority, or some other bodyset up to consider prospective appointees?What of formal applications for appointmentthat canvass such matters? It was the privacyof Mr Piddington’s communication of hiscentralist inclinations that compromised hisimpartiality. If, in a previous judicial capacity,he had displayed such tendencies for all to see,who could have suggested any impropriety inhis appointment?

Reference has been made above to acting orpart-time judges. Is this a legitimate means bywhich governments may assess the suitability

of prospective appointees? Suitability hasmany aspects. It may include temperament,diligence, and such basic skills as the capacityto evaluate evidence and to compose reasonsfor judgment. Is it reasonable for a governmentto look for a reliable method of evaluatingsuitability before making a full-time appoint-ment? Or does it compromise the impartialityof part-time judges if litigants are aware that ajudge’s prospects of permanent appointmentmay depend upon making a favourable impres-sion on the executive? Questions such as thiswere examined by the High Court of Justiciaryin the Scottish case of Starrs v Ruxton (2000SLT 42). They deserve wider debate in otherjurisdictions, especially with increasing non-professional interest in the process ofappointment.

In a federal system, where the balance ofpower between federal and State governmentsis often a sensitive issue, the appointment ofthe members of the ultimate court that decidesconstitutional questions usually rests with thefederal government. It might explain why, inAustralia, at the federal level, neither of themajor political parties has shown muchinterest in proposals to surrender to aCommission or similar authority the power ofappointment, or of recommending appoint-ments, to the High Court.

RemovalThe traditional formula for the removal ofjudges, or at least superior judges, upon anaddress of Parliament on the grounds of provedmisbehaviour or incapacity serves the interestsof independence. Yet, in an age that demandsaccountability in all aspects of government, itdoes not satisfy everybody. Appropriateaccountability serves two purposes. It promotesgood decision-making, and it gives effect to thedemocratic idea that no power should beuncontrolled. The problem is to strike abalance between those purposes, on the onehand, and the requirements of impartiality andindependence on the other.

There now exist, in different Commonwealthcountries, and within those countries, variousmechanisms designed to strike that balance. For10 years, when I was Chief Justice of NewSouth Wales, I was also President of the JudicialCommission of that State. The JudicialCommission was set up in 1986 to receivecomplaints against judicial officers. It is not

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difficult to devise a suitable method of dealingwith serious allegations against judges. If thereis an allegation of a crime, criminal justice takesits course. If there is an allegation of incapacity,or non-criminal misbehaviour, so serious that itmay warrant removal, then ultimately it is amatter for Parliament. It may be necessary toestablish either standing or ad hoc proceduresto filter complaints, or investigate facts, butthese are to enable Parliament to exercise itsproper function. The involvement in thoseprocedures of persons or bodies external toParliament, including members of the judiciary,is handled differently in different places.

The real difficulty is in dealing with complaintsthat, even if made out, would not justifyremoval. All complainants believe theircomplaints are serious. But only a very smallpercentage of the complaints I have seen couldpossibly warrant removal. Creating a formalprocedure gives rise to an expectation that, if acomplaint is found to be justified, somesanction can be applied. Most complainantsare not satisfied by being told that a judge willbe spoken to. What forms of sanction, short ofremoval, might there be?

The exposure of judges to public or privatecensure, or some penalty falling short ofremoval from office, is, at least in Australia, acontroversial topic. The judiciary is not a disci-plined force, subject to command, like thearmed services. The independence of judgesincludes independence of one another. ChiefJustices and others may develop formal orinformal procedures of appraisal in order toenable them to discharge their responsibilities,but there is an obvious danger if performancereview extends beyond matters such as timelydelivery of judgments into areas relating tosubstantive decision-making. The justicesystem has its own well-established system ofperformance review: it is the appellate process.Judges enjoy, as a matter of public policy,substantial immunity from civil and penalsanctions for erroneous decisions. In theSupreme Court of the United States, inForrester v White (484 US 219 (1988) at 226-227), O’Connor J said that ‘[i]f judges werepersonally liable for erroneous decisions, theresulting avalanche of suits ... would providepowerful incentives for judges to avoidrendering decisions likely to provoke suchsuits’. A system which exposes judges to thepossibility of reprisals of any kind for the

manner in which they exercise their judicialfunctions needs to be measured carefullyagainst the imperatives of maintaining theirimpartiality and independence.

AccountabilityA predictable area of future tension betweenthe political branches and the judiciary resultsfrom increasing demands for accountability inrelation to functions which are described asadministrative, but which are closely related tothe judicial process. Where it is the function ofa head of jurisdiction, or judge administrator,to assign members of a court to hear particularcases, or to allocate the business of a court fordisposition according to certain internalarrangements, the capacity to exercise thatfunction free from external interference is anessential aspect of judicial independence. TheSupreme Court of Canada has identified‘matters of administration bearing directly onthe exercise of [the] judicial function’, includingassignment of judges, sittings of court andcourt lists, allocation of court-rooms and direc-tion of staff engaged in that function (Valente vThe Queen [1985] 2 SCR 673 at 708-709).These processes affect the efficiency of courts,and often involve the application of substantialresources. The public, and the other branchesof government, want to be satisfied that thecourts are using the funds made available tothem wisely. Demands for a suitable level ofaccountability for the way in which courtsapply public money are natural and inevitable.The task of devising appropriate forms ofaccountability consistent with the requirementsof independence is a challenge for moderngovernment, including the judiciary.

Accountability for the application of resourcesis one thing; accountability for decision-making is another. Judges work in public; theygive reasons for their decisions; and thosedecisions are routinely subject to the appealprocess. That, however, does not satisfy every-body. Much of the work of judges attracts littlepublic attention. Some of it attracts a lot ofattention, public comment, and politicalcontroversy. The sentencing of offenders is anexample. What is called the law and orderdebate sometimes involves opportunisticdemands, not merely for the reduction ofjudicial discretion, but also for sanctions forunpopular decision-making. If judges could bepenalised, or publicly censured, because their

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decisions displeased the government, or somepowerful person or interest group, or, for thatmatter, most of the community, then the rightof citizens to an independent judiciary wouldbe worthless.

There are those who, accepting fully thatjudges should not be exposed to sanctionsbecause their decisions are unpopular, wouldsee a difference in cases of error. The appealprocess reveals judicial mistakes, and some ofthose mistakes fall outside range of mattersupon which different opinions are fairly open.Judicial mistakes may have very damagingconsequences. The common law confers onjudges an immunity from civil liability. Thebasis of the immunity is the constitutionalimperative of judicial independence. It is diffi-cult to reconcile that immunity with somealternative system of administrative penaltiesor sanctions, falling short of removal forincapacity. Sanctions for misconduct fallingshort of misbehaviour that warrants removalare difficult to devise, in a manner that respectsindependence. Even more difficult aresanctions for error that falls short of demon-strating incapacity. This is a topic that iscertain to produce tensions, especially with theincreasing size of the judiciary, and theincreasing range of judicial officers who areregarded as being entitled to full independence.

Effects of reorganisationsRemoval of judges might result from the aboli-tion or restructuring of courts. Subject to therequirements of a Constitution, it is ordinarilyfor Parliament to decide, from time to time, theconfiguration of a nation’s court system. InAustralia, the Constitution mandated thecreation of a Federal Supreme Court, to becalled the High Court of Australia, but it is forParliament to decide what other federal courtsare to exercise the judicial power of theCommonwealth. The Federal Court and theFamily Court were not created until the1970’s, and the Federal Magistrates Court wascreated very recently. The Federal Court tookover the jurisdictions formerly exercised by theFederal Court of Bankruptcy and theAustralian Industrial Court. Those courts nolonger exist. Obviously, legislatures must beable to respond to changing needs and circum-stances by creating and abolishing courts. Isthere any legal obligation, or establishedconvention, which requires that judges who

lose office in this way should be appointed tosome equivalent office?

In New South Wales, the Constitution Act1902, in s.56 covers the issue. It provides thata person who held an abolished judicial officeis entitled, without loss of remuneration, to beappointed to and to hold another judicial officein a court of equivalent status. (Article 29 ofthe Beijing Statement of Principles of theIndependence of the Judiciary is to the sameeffect as s 56.) When the Compensation Courtof New South Wales was abolished, itsmembers were appointed to the District Court.Such transfers are not always without diffi-culty. The District Court exercises extensivecriminal jurisdiction, and work of that kindwould have been new to some of the formerCompensation Court judges. Even so, thetransfers were required by the ConstitutionAct, and worked satisfactorily. It is not hard tothink of some specialist courts whose membersmight have difficulty relating to other work. Ofcourse, they may not want to try, but theproblem does not arise in the case of judgeswho do not wish to be re-located. Abolition ofcourts or of judicial offices usually takes placefor reasons that have nothing to do with anattack on judicial independence. Yet there maybe exceptional cases where issues of independ-ence are involved. In the absence of a provisionsuch as s.56, it may not be easy to find a legal,as distinct from a political, basis for a remedy.

Appointment of Judges to Commissionsand InquiriesReference has already been made to the commonpractice of conferring judicial power uponpersons other than regular judges, by which Imean full-time judges who enjoy the security oftenure and remuneration ordinarily associatedwith independence. There is an equally commonpractice of engaging the services of regularjudges for the performance of functions whichmay benefit from the exercise of judicial skills,but which do not involve the exercise of judicialpower. Not only is this practice common; it ispopular with parliamentarians, and the public.Usually it involves the executive arm of govern-ment taking advantage, (not necessarily unfairadvantage), of the independence associated inthe public mind with the judicial arm. Whencalls are made for a ‘judicial inquiry’ to be set up,they may be based upon an appreciation ofcertain judicial skills, but they reflect, above all,

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a demand for fairness of process and independ-ence of decision-making. Nothing betterconfirms the judiciary’s impartiality than theimportance which is so often attached to havinga serving or retired judge for an inquiry intosome controversial matter which may havenothing to do with the law. Judges are in demandon these occasions, not because they have anyspecial reputation for wisdom, but because theyhave a special reputation for independence andimpartiality. Does this practice carry with it anydangers for the very qualities which are thoughtto justify its adoption?

In the April 2005 edition of the Law QuarterlyReview there is a paper by a senior Englishjudge examining this topic in the light ofpractice in the United Kingdom and Israel (JBeatson, Should Judges conduct publicinquiries? (2005) 121 LQR 221). Recent legisla-tion in the United Kingdom, the Inquiries Act2005, specifically deals with certain mattersrelating to the conduct of public inquiries byserving judges. In a book published in 2004,Centennial Crisis: The Disputed Election of1876, the Chief Justice Rehnquist of the UnitedStates considered the practice of Justices of theSupreme Court of the United States serving inextra-judicial capacities. He referred to suchfamous examples as Justice Roberts’ inquiryinto the circumstances of the Japanese attack onPearl Harbour, Justice Jackson’s service on theNuremberg War Crimes Tribunal, and ChiefJustice Warren’s inquiry into the assassination ofPresident Kennedy. His opinion was that inextraordinary circumstances of grave nationalconsequence such service may be justified.Plainly, in all but extraordinary circumstances, itwould not be contemplated. War seems tocreate special cases. During World War II, SirOwen Dixon, while on the High Court, servedas Chairman of the Central Wool Committee,the Australian Shipping Control Board, theMarine War Risks Insurance Board, the SalvageBoard, and the Allied Consultative ShippingCouncil of Australia, and also as AustralianMinister to Washington. In 1950, he attemptedto mediate a dispute between India and Pakistanover Kashmir. Sir William Webb, while amember of the High Court, was President of theInternational Military Tribunal for the Far East,in Tokyo.

In 1955, Sir Owen Dixon said that, in retro-spect, he did not altogether approve of his ownextra-judicial service ((1955) 29 Australian

Law Journal at 272). He also said that, withonly one very trifling exception during theGreat War, the High Court of Australia hasalways maintained the position that its judgeswould not accept appointment as RoyalCommissioners. That position was firstasserted by Chief Justice Knox, it wasreasserted in the 1920s, it was maintained byChief Justice Dixon, and it has beenmaintained to the present day. In brief, in theSupreme Court of the United States, and theHigh Court of Australia, extra-judicial servicehas been rare and extraordinary, and has beenconfined substantially to times of war or gravenational emergency. In Australia, members ofthe High Court are not available to serve asRoyal Commissioners.

As to other federal judges in Australia, theirposition is affected by the separation of powersrequired by the Constitution. Non-judicialpower may not be conferred on federal courts,but federal judges, appointed as persona desig-nata, may take on functions that do notinvolve the exercise of judicial power providedsuch functions are not incompatible with theirstatus and independence, or with the exerciseof the judicial power of the Commonwealth, orwith the maintenance of public confidence inthe exercise of the judicial power of theCommonwealth. The High Court has cited theopinion of the Supreme Court of the UnitedStates in Mistretta v United States (488 US 361at 407 (1989)):

‘The legitimacy of the Judicial Branchultimately depends upon its reputation forimpartiality and nonpartisanship. Thatreputation may not be borrowed by thepolitical Branches to cloak their work inthe neutral colors of judicial action.’

That is a salutary warning even in jurisdictionswhere there is no constitutionally requiredseparation of powers, such as the AustralianStates. There are well understood practicaldangers of judges being drawn into politicalcontroversy by an injudicious decision to takeon an inquiry in which partisan interests areinvolved. It may be that the reason why theexecutive seeks a judge for an inquiry is that itis obvious that it may arouse political passions,and it is hoped they may be cooled by a neutralinquirer. That might be a good reason for thejudiciary to decline to be drawn in. What isworse, however, is a case where an inquiry is

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given a task which is of such a nature that itsperformance cannot be completelyindependent of executive or legislative influ-ence. It is one thing to seek to turn thejudiciary’s reputation for impartiality to publicadvantage; it is another thing to use thatreputation to give to partisan executive orlegislative action a spurious appearance ofimpartiality.

In most Australian States, including New SouthWales, the practice in relation to judges acting asRoyal Commissioners or conducting inquiries ismuch the same as it is in the United Kingdom. Itis accepted, although opinions differ about itswisdom in particular cases. There is an impor-tant practical issue: the method of selection ofthe judge to be invited to do the job. Plainly thiscan be relevant to the appearance of impar-tiality. The Australian Guidelines to JudicialConduct tell judges that if the executive govern-ment is seeking the services of a judge for anon-judicial appointment, the first approachshould be to the Chief Justice or other head ofjurisdiction, seeking the approval of that personfor the appointment of a judge from that juris-diction, and seeking approval to approach thejudge in question. Judges should not dealdirectly with the Attorney-General or otherrepresentative of the executive governmentwithout the prior approval of the head of juris-diction who has the responsibility ofconsidering the propriety of the judge acceptingthe proposed appointment.

The exceptional State is Victoria. In 1923,Chief Justice Irvine wrote to the VictorianAttorney-General declining a request that heinvite one of the judges of the Supreme Courtof Victoria to undertake a Royal Commission,and expressing the view that it was generallyinappropriate for judges to do other than hearand determine issues of fact and law in thecontext of the resolution of a justiciablecontroversy. In 1954, the judges of theSupreme Court of Victoria, with the support ofthe Victorian Bar, adopted a resolution that,except in a matter of national importancearising in times of national emergency, it isundesirable that any judge should acceptnomination as a Royal Commissioner. TheChief Justice of Victoria has told me that thisremains the view of her Court.

ConclusionIt would be wrong to assume that the politicalbranches of government are natural enemies ofjudicial independence. The Act of Settlementwas the work of a Parliament which saw thatits own interests lay in supporting thejudiciary’s independence of the executive, thatis, the King. Similarly, in modern democracies,executive dominance of the political process,potentially weakening the power and influenceof parliaments, gives legislators a continuinginterest in preventing executive dominance ofthe judges. In a representative democracy,parliaments are composed of shifting powergroups, and those who today are in the ascen-dancy will one day be in opposition.Politicians, even when in power, are not soshort-sighted as to overlook the possibility thatthe interests they represent may in future needthe protection of a non-compliant judiciary.Judge Clifford Wallace of the United States,referring to an earlier work by William Landesand Richard Posner, observed that ‘[t]hepredictability that comes with judicialindependence also benefits the politicalbranches of government’ because ‘interestgroups have increased faith in the enduranceacross administrations of legislation theysupport’.

The economic significance of the predictabilitythat comes with the rule of law and judicialindependence is widely acknowledged.Speaking in Australia in March 2005, theChief Justice of the People’s Republic of China,Xiao Yang, said:

‘Thirty years ago [in] China ... the law andthe judiciary only focused on punishment,while the judiciary’s function of impartialjudgment was totally obliterated. Judicialorgans and officials were [equated] withother government departments andcommon civil servants while judicialindependence was totally neglected ...

Since reform and opening up in 1978,fundamental changes have taken place inChina’s politics, economy and society andthey have put forward new requirementsfor [the] judicial system. The under-standing of the judiciary by thegovernment, society and people has alsochanged. A new set of judicial concepts aspart of political civilization is takingshape.’

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In Asia and the Pacific region, ‘judicial reform’is high on the agenda of developing economies.The reasons are pragmatic as well as ideolog-ical. As well as protecting the rights of citizens,an independent judiciary is good for govern-ment, and good for business. Impartial,predictable, rule-based adjudication in openjustice administered by independent courts is anecessary condition of economic progress.

To ask whether judges deserve their independ-ence is like asking whether parliamentariansdeserve their freedom of speech. It should notbe difficult to explain to the public, and tothose in the political branches of government,why they need, benefit from, and have a rightto, an independent judiciary. Providing andreinforcing that explanation is a responsibilityof the modern judiciary. It is not enough tojustify our independence to one another. Thereis an educational role for us to take up. Legalpractitioners, and law teachers, are our allies inthat task, but we should not assume that weare facing a hostile audience. In Australia, andin many other parts of the Commonwealth, itis unlikely that there would be a directchallenge to the concept of judicial independ-ence. What is more likely is that some people,not understanding why it exists, or what itinvolves, will make well-intentioned demands,in the name of accountability, which are incon-sistent with independence.

How well equipped are we to explain tocitizens their right to an independent judiciary,and to encourage them to value that right?Most superior courts in Australia and, Iassume, in other parts of the Commonwealth,have Public Information Officers. Thosepeople are not there merely for the purpose ofreacting to emergencies, and dealing with thedemands of the media. Perhaps we should bemaking better use of their potential. We canhope, and sometimes reasonably expect, thatpolitical leaders and civil servants will under-stand why our independence exists, and whatit requires, but it is unrealistic to expect thoseof whom we are supposed to be independent toassume the burden of justifying that independ-ence to the public. Modern judicialorganization and leadership has, in thebroadest sense of the term, a political dimen-sion. Representing the judiciary to the politicalbranches of government, and to the public, andexplaining independence in an age of account-ability, is a challenge. The ways in whichdifferent judiciaries address that challenge willbe influenced by local circumstances. There isalways the likelihood that claims of independ-ence will be seen as self-interested. Themessage that needs to be communicated andconstantly reinforced, in the manner appro-priate to the time and place, is that anindependent judiciary is indispensable in a freesociety living under the rule of law.

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‘Enough we’ve hadOf rule that’s bad,To make us sad –Aye, drive us mad!In Shetland’

William Fordyce ClarkShetland News 1887

Orkney and Shetland are those bits of theUnited Kingdom which are often shewn in abox on the right hand side of maps andweather forecasts! There is no doubt that theyare a part of the United Kingdom, but thequestion is what sort of a part? Are theywholly integrated in the same way as Wales orthe Hebrides? Or do they have a differentstatus?

The answer to the question has far-reachingimplications: not just in the area of privateland ownership and whether it is feudal orallodial in character, but the rights of theCrown Estate Commissioners to claim dues forthe use of the foreshore from the udal owners,the rights to both the sea bed and what liesunderneath it and fishing rights too. Indeedwhether the islands are even a part of theEuropean Union or have a status similar to theChannel Islands or the Isle of Man, or none atall, like Norway.

Joy Squires wrote a paper ‘Re-visiting ‘InternalColonialism’: the case of Shetland’1 re-examining a proposition put forward twentyyears earlier by Michael Hechter (InternalColonialism. The Celtic Fringe in BritishNational Development 1536-1966 Routledge& Kegan Paul 1975 and ‘Internal ColonialismRevisited’ in New Nationalisms of theDeveloped West, Allen and Unwin 1985)which was, briefly, as follows ‘Commerce andtrade among members of the periphery tend tobe monopolised by the core..’ For which hewas, not surprisingly, roundly condemned. Theimpetus for the attention which was focussedupon this issue was probably the fact that,even at that time, oil revenues had given theUnited Kingdom £100 billion, not to mention

the ongoing income to the Crown EstatesCommission. But the historical reasons for theresentment which underlies this debate are tobe found in the history of these islands: themore recent events including the clearancescarried out by the Scottish Lairds, illegally it issuggested.

The historyThe Vikings arrived in Shetland and Orkneyand the Western Isles and the Isle of Man atsome time around AD 872-900, and theysettled. Before then there had been inhabitantsthere for at least 5,000 to 6,000 years and it isbelieved that they were Picts. What happenedto them no one seems to know. Perhaps theywere assimilated since the difference betweenthem and the new settlers was only size, or soit is thought! The Scots seem to have beensettled in the Western Isles at that time andthey certainly settled more and more inShetland and Orkney in the centuries thatfollowed. But the islands were owned byNorway which in turn was a part of Denmark.

Whether the impetus for settlement was polit-ical or economic, or a mixture of both, there isno doubt that the Norwegian settlers retainedclose links with Norway and even into the18th century cases were being referred to thecourt in Bergen (See Galloway and others(Udalmen of Orkney) v. Earl of Morton 1752F.C.i.39; M.16393, known as the PoundlarCase).

The relationship between the Norwegian kingand the earls of Orkney was at times difficultand ambiguous, but until 1468–69 theNorwegian Crown always maintained somesort of political authority in Orkney andShetland. Despite this, the Norse Jarls hadbecome extinct in 1231 the earldom passing tothe Scottish House of Angus, whenceaccording to Drever was introduced a nascentfeudal Scottish sphere of influence (Udal Lawin the Orkneys and Zetland, revised andreprinted from Green’s Encyclopaedia of theLaw of Scotland, 1914).

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UDAL LAW AND ORKNEY AND SHETLANDCOLONIALISM IN OUR OWN BACK YARD?

Geoffrey Care

The feudal systemIt is said also that in the 11th Century feudallaw was introduced into Scotland, via the clansystem, by Margaret the second wife ofMalcolm Ceanmore (then the King ofScotland). She was also the granddaughter ofEdmund King of England. This may explainwhy she introduced this system since it came toGreat Britain with the Conquest by William.Under this system all land was owned by theKing and distributed by him as he saw fit inreturn for numerous obligations, such assupplying troops when the King needed them.The feudal system was not the legal system ofthe Norse people and is not now. The legalsystem of the Norse settlers was allodial orUdal (Odel or Odal) which they brought itwith them in much the same way as Britishsettlers brought the common law when theysettled lands, to become part of theCommonwealth by conquest, cession or, asterrae nullius where no one was there beforethem.

The kernel of Udal Law in relation to land andits incidents is that, in contrast to feudal law, ithas no ultimate human ownership: since thecoming of Christianity it is owned by Godalone. But as a system it is just as much acomprehensive one as is the Common Law. Itincludes rights of inheritance and succession,weights and measurements and money;government, administration, lawmaking andjustice as a whole. Land tenure extended intothe sea, including both the foreshore and the(much disputed) seabed.

Udal law - rightsThe right to the foreshore under udal lawcarried with it various rights which were animportant economic asset, although theirextent is difficult to determine. For examplethe present capital of Shetland, Lerwick, origi-nally consisted of detached houses on a plotwhich was bounded on one side by the sea. Intime a road was built in front of these housesbetween them and the seashore. The owners,including a Mr Smith, asserted their rights tothe foreshore as an adjunct of their alod byforce of their udal tenure. The HarbourTrustees asserted rights derived from a grantby the Crown of the Crown’s feudal right tothe foreshore. Mr Smith won: the court saidthat the foreshore (and other land) of Shetland

was allodial not feudal: Smith v LerwickHarbour Trustees 1903 5 F 680.

In Norway udal tenure included rights towhales, seals, wreck and even the belongings ofshipwrecked mariners. In Iceland the owner ofthe foreshore had the right to everythingcaught between the foreshore and netlog(boundary) which extended to the depth oftwenty meshes of seal net. Between the netlogand open sea the owner had the right to whatwas driven ashore (reki). Looking at laterOrkney and Shetland records, it can be seenthat the owner of the foreshore had similarproprietorial rights, including bait within theebb, and ‘latrom ok lunnendom’, which hasbeen variously translated as ‘sealing places andappurtenances’, that is hunting places of theseal, and ‘lots and parts’. In a perambulationof disputed marches in 1583–84 it was heldthat the owner had a just right ‘to the groundand all the wear that comes ashore within theforesaid marches’.

The impignorationGoing back to the history, the Western Isles(Hebrides) were ceded by Norway to Scotlandin 1266 for an annual rent of 100 marks whichby 1460 had fallen into arrear. That debt wasdischarged on 8 September 1468 at themarriage of Margaret, the daughter of KingChristian of Denmark and Norway to JamesIII of Scotland. King Christian could nothowever afford the dowry of 60,000fl so hepaid 2,000fl in cash and pledged (not, be itnoted, ceded) Orkney in 1468 for 50,000fl(and this is where the whole argument begins).He still had not got enough of the ‘readies’ asthey say now, to pay the rest of the dowry incash, so for the balance of 8,000fl he then alsopledged Shetland in 1469 ‘on the same terms’as Orkney. He also instructed the people of theislands to pay their skat (tax) to the ScottishCrown; by so saying it is said he therebyconfirmed the Right of Redemption in thepledge. In 1470 King James III of Scotlandacquired the Earldom of Orkney and in thefollowing year ‘annexed’ it to the Crown; bythis annexation he also acquired an heritableinterest.

Sovereignty over the islands had not beenceded and therefore it seems was still reservedto the Norwegian Crown. This fact has beenprotested by Denmark on at least sevenoccasions since, the last firm recorded attempt

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being by the Treaty of Breda in 1667, thougheven as late as 1749 Frederick V made afurther attempt. Sovereignty in the sense of theexercise of power as head of state and definingthe relationship with the people as opposed tothe land has indeed been exercised continu-ously by the Scottish Crown since 1468 but thequestion is what rights, prerogative or other-wise, has the Crown in relation to theownership of the land or the ability to alter thelaw relating to any of the incidents thereof?

Which laws?This article does not provide any answers tothe issues but points to the history of theislands, the treatment of its peoples and itsnatural wealth with some of the case lawwhich signals questions to which answers mayyet remain to be given.

Some pointers can be derived from history. In1567 the Scottish Parliament discussedwhether Orkney and Shetland should besubject to and enjoy their ‘aune lawis’ (theirown laws) rather than Scots Law: theyconcluded that they should but whether thisbecame an Act is not known for certain.2 In1611 an Act was passed which abolishedNorse Law. It said nothing of udal land law.3

There was no longer available a coherentwritten code of Norse customary law inlanguage of general use. Such aspects of the oldlaw as survived depended on memory and oraltradition and came to be regarded as in effectcustoms grafted onto a general corpus of Scotslaw. Thus some aspects of udal tenure,including now superseded rules on succession,rights over the foreshore and of salmon fishing,scat, scattald and commonty and certainweights and measures, were tolerated as diver-gences from the general law.

In 1669 an Act of Annexation was passed inthe reign of Charles II.4 In effect this removedthe rights of the Lords of Shetland and theEarls of Orkney, the preamble asserting that it‘..will be the great advantage of his Majesty’ssubjects dwelling there that without inter-posing any other Lord or superior betwixt hisMajesty and his Officers…’. Arguably thisrestored the position of the islands as at 1469making them Crown dependencies.Unfortunately this was not the end to oppres-sion. Much of the land is owned by the lairds,who are of Scottish descent, and the ancientlanguage of the islands, Norn, survives only in

a few words, the teaching of it having beensuppressed. It was the conduct of the Earl ofMorton, one of Balfours’ needy and rapaciouscourtiers, that gave rise to The Poundlars Case1750-59, already referred to as one referrednot to the Scottish courts but to the court inBergen, Norway.

Issues of Crown ownershipSince under Udal (or allodial) law the King didnot own the land, so the argument goes, hewas unable to pass any title to it, nor is theowner under any obligations to a superiorlandlord. The liability to pay tax (skat) beingsimply a contribution to maintain a govern-ment, as it is today. In contrast the systemwhich applies now in Scotland, and has sincethe Conquest applied in England, is feudal.What is yet to be clearly established is theextent to which the Udal Law system remainsa part of the present legal system of Orkneyand Shetland and in what ways. Until thisquestion is answered, we will not knowwhether Shetland and Orkney is able to assertits claims to a greater share in the wealth ofwhat lies in and under the sea and has anygreater right to manage its own affairs than therest of the United Kingdom.

The Crown Estates Commissioners’ rights oversuch matters as marina, salmon fishing,moorings, dredging, sovereignty and territori-ality of the sea and seabed, and the mineralsbelow, are bound to be issues which will behard fought over. Land ownership, inheritance,treasure trove and so on are important pointerssince the case law so far has been concernedwith such matters but in themselves they arerarely causes for litigation or dispute. Thoseareas of law relating to weights and measurescan be found in the earlier title documents andsome records of the Lairds but have no currentinterest.

Issues of relevanceAnother reason for finding an answer is simplyrecognising that when it comes to currentdevelopments in communications, culture andtrade links, Shetland has much in commonwith Norway, Denmark, Faeroe and Iceland:more with Scotland but little with England. Atthe present time trade between countries in theScandinavian Region is increasing and air linksand ferry lines too.

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As mentioned, the issues involved are complexand this article can do no more than point tosome of the considerations which need to beexamined in order to try to reach answers. Butultimately, even then, before there is to be anyfinal resolution I would expect it to be neces-sary to have a definitive decision of a court,possibly a supra-national one.

To those who would say that Udal law isarchaic, I reply that it is no more so than is thecommon law. It is accepted that even withinUdal land tenure itself there are local varia-tions but this did not affect the kernel ofultimate ownership. This is particularlyapparent when studying rights in the seabed.5

Effects of passage of timeOne of the major planks in the argument ofthose who contend that Udal Law is neithereffective nor operative, and that the reality ofthe original Pledge in 1469 has long sincegone, is the passage of time. There seems,however, to be little authority for this proposi-tion and some positively against it (Spence vUnion Bank of Scotland (1894) 31 SCR 904; 1SLT 648 OH), and nowhere has anyoneattempted to put a date when that can be saidto have occurred - nor is there agreement onthe consequences of that loss: has there hasbeen in effect a full transfer of sovereignty anddominium?

Others take the view that by gradual abandon-ment of allodial ownership the Crown hasacquired feudal rights. Again, there has beenno study of how, if the Crown had neveracquired feudal rights in the first place,abandonment can give it something it neverhad. But as an examination of the cases show,it does seem to be generally accepted by thecourts that Udal law survives in some waysand to some extent and in some areas ofShetland and Orkney in the case of landtenure. There is no agreement how it does orwhy, nor if it applies in other areas.

Decisions of the CourtsIn Lord Advocate v Balfour (1907 S.C. 1360.15 SLT 7), where the issues involved salmonfishing rights in Orkney, Lord Johnston heldthis a matter for Udal not feudal law. TheCrown had no right to salmon fisheries priorto 1468, and had none now. More generally,the feudal system of Scotland was not the legalsystem of Orkney. Lord Johnston found that

‘nothing has occurred since 1468 whichamounts to a general acceptance in Orkney ofthe Scots Feudal System, and still less of itscustomary incidents’. In Smith v LerwickHarbour Trustees, referred to earlier, theCrown’s claims were rejected. CompareLerwick Harbour Trust v Moar (1951 SLT (ShCt) 46), which relates to other land not held onudal tenure. Then in Spence v Earl of Zetland(1839 3 Browns Supp 610), Lord Jeffrey held

‘there is not the slightest appearance of itsever having been held that the overlord ofthese islands of Shetland had been theoriginal proprietor of all the lands theycontain. There is no feudal supremacy,and there is not a shadow or trace of anoriginal property in the lord or sovereign’.

It was held in Crown Estate Commissioners vFairlie Yacht Slip Ltd (1976 SC 161; 1979 SC156) that the right of the Crown to the seabedwas a right of property under English andScots law; that case involved the mainland ofScotland. In Shetland Salmon FarmersAssociation v Crown Estate Commissioners(1991 S.L.T. 166) it was held that Udal law didnot expressly deal with ownership of the seabed and that the Crown had a right of propertyin the sea bed by virtue of the prerogative. Inregard to whales it was held in Bruce v Smith(1890 17 R 1000) that a whale culled belowlow water mark and dragged up between highand low water mark and sold belonged to theclaimant. However the court dealt with thecase as if it were custom, in Scotland, eventhough it may equally have derived from Norselaw.

Sovereignty and the seaWhen it comes to fishing in the open seas, theissue takes on a more complicated and politicalhue. The history and the references are exten-sive and call for the expert attention of onewell versed in sea law. Some of the significantactions appear to be essentially acts of diplo-macy but I will set out some of those whichmay indicate what the parties thought at thetime.

In 1274 the Gulathing states, ‘Fishing groundsin the common belong equally to all’. But therewere then numerous complaints to the EnglishKings. In 1415 King Erik of Norway andDenmark complained to Henry V aboutEnglish infringement of Icelandic fishing rights

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off Iceland. Norse ownership extends out tothe Marebekke (the early name for the edge ofthe Continental Shelf). Henry prohibitedEnglish fishing in Norse or Danish islandwaters (included Orkney and Shetland). Thenthere were a number of decisions between1420 and 1622 restricting fishing in ‘Land-kenning’ [sight of land] in one way or another.

One of the questions which arises is does theCrown by extending sovereignty and jurisdic-tion automatically acquire proprietary rights inOrkney and Shetland amounting to ownership,or may there not be competing proprietaryrights to the seabed?6

The Continental Shelf Act 1964 purports tovest the Continental Shelf’s natural resourcesin the Crown. But on what basis? If the Crownhas no proprietoral rights in the dry land howcan it claim to own the extension into the sea?Of course it has sovereignty in the sense that ithas jurisdiction.

A global viewLooking at the case law elsewhere, there aredecisions in Canada regarding aboriginalrights, decisions in Africa such Amodi Tijani((1921) 2 AC 407, PC) which are inconsistentwith the notion that the common law nativetitle was merely permissive which the Crowncould terminate. All these and others have beenexhaustively reviewed in the major decision inAustralia, Mabo v Queensland ((1992) 175CLR 1) which examined at great length all thecase law in relation to the preservation ofnative rights after the Crown took possessionof the country: the Crown must prove its titlejust like anyone else. The rights of indigenouspeoples have received much attention in theCommonwealth Policy Studies Unit and itincluded in its remit a brief study of Udal law.7

Perhaps a study of the predicament and therecent case law of the Chagos Islanders mayindicate what the Courts of the UnitedKingdom may decide and how anyGovernment may act. The Chagos Islanderswere expelled by the British Government andever since have pressed claims to return and/orreceive adequate compensation. Laws LJ in R(Bancoult) v. Secretary of State for Foreign andCommonwealth Affairs ([2001] QB 1067)recounted their sad story in compelling detailwhen he held that the Islanders enforcedremoval was unlawful. The Ordinance under

which the expulsion was effected was outwiththe Constitution of the Territory: a power tomake laws for the ‘peace, order and goodgovernment’ of a territory required its peopleto be governed, not removed. Ouseley J inanother judgment (Chagos Islanders vAttorney General [2003] EWHC 2222) wentout of his way to name the treatment metedout to the Islanders as shameless. Although itaccepted the judgment, the Governmentenacted a new Constitution in which theabsence of any right to live in the Territorybecame an Article of Constitution inR (Bancoult) v. Secretary of State for Foreignand Commonwealth Affairs ([2006] EWHC1038 (Admin)) the Divisional Court declaredthe Article irrational on public law groundsand quashed it: it was not made in the interestsof the Territory but in the interests of theUnited Kingdom and of the United States. Butthe islanders have not been allowed to return.

ConclusionThe bottom line which a study of this line ofcases may reveal is that the outcome of anydomestic court may be immaterial and thattherefore only if subsisting rights, if there areany, were to be upheld by a supra-nationalcourt, whose decision was binding on theUnited Kingdom, could such rights beenforced.

1 http://www.psa.ac.uk/cps/1996/squir.pdf. I amindebted to her for her paper but I was notconsciously seeking to plagiarise her title orideas.

2 APS iii, 41.3 RPC ix 181-2.4 Acta Parliamentorum Caroli II 1669 p 566.19.5 See Jane Ryder writing in Stair.6 See Jane Ryder, ‘Udal Law; an Introduction’,

Northern Studies, Vol.25, 1988.7 CPSU Summary Report of the Indigenous

Rights in the Commonwealth Project, 2001-2004 by Helena Whall. The headnote states‘The Commonwealth remains a quarter of acentury behind the United Nations in regards torecognition and protection of the human rightsof Indigenous Peoples, and has lost an opportu-nity to modernise its values’. Appendix 2 dealtwith comparative law such as property rights inthe foreshore and seabed.

A fuller version of this article with much moreextensive citations can be obtained from theauthor via the CMJA.

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Article 27 of the International Covenant onCivil and Political Rights (ICCPR) which wasconcluded on 16 December 1966 provides:

In those states in which ethnic religious orlinguistic minorities exist, personsbelonging to such minorities shall not bedenied the right, in community with theother members of their group, to enjoytheir own culture, to profess and practisetheir own religion, or to use their ownlanguage.

However, the term ‘minorities’ is not explicitlydefined in the ICCPR. As a highly regardedtextbook (Rhona K.M. Smith, InternationalHuman Rights, Oxford University Press, 2003,at p. 312) observes, ‘one of the main problemsassociated with minority protection underinternational human rights law has been thelack of a universally accepted definition ofwhat constitutes a minority’. For the purposesof this paper, the absence of a universallyaccepted definition is no less problematic:although Barbados became a signatory to theICCPR as early as in 1973, its provisions havenot been incorporated into the domestic law ofBarbados. Further, it is to the Constitution ofBarbados and the fundamental human rightsand freedoms entrenched therein that one mustturn to discover a juridical basis for the generalprotection of human rights; and in theConstitution there is no specific mention orrecognition of minorities or of the enforcementof provisions relating to minorities.

Nevertheless, the concept of minorities isnecessary given the nature of the Barbadianpopulation with its distinct ethnic, religiousand, to a lesser extent, linguistic groups.Revisiting Article 27 of the ICCPR, a usefuldefinition may be constructed in terms of theattributes ascribed therein to a minority:

A minority is a group of persons consti-tuting a numerical minority of thepopulation of a state having either ethnic,religious or linguistic characteristicsdiffering from those of the majority of thepopulation and bonded by a collectivedesire to maintain its ethnic, religious orcultural identity.

Juridical Basis of Human RightsSection 11 of the Constitution of Barbadoswhich enshrines fundamental human rightsand freedoms, guarantees to every person inBarbados: ‘the right, whatever his race, placeof origin, political opinions, colour, creed orsex, but subject to respect for the rights andfreedoms of others and for the public interest… life, liberty and security of person; protec-tion for the privacy of his home and otherproperty and from deprivation of propertywithout compensation; the protection of law;and freedom of conscience, of expression andof assembly and association’. Sections 12 to 23of the Constitution provide for the protectionof those fundamental rights and freedoms andsection 24 affords a right of access to the HighCourt for redress by any person who allegesthat any of the protective provisions undersections 12 to 23 has been or is being or islikely to be contravened in relation to thatperson. Until such time as the provisions of theICCPR are incorporated into the domestic lawof Barbados, persons belonging to minoritygroups in Barbados may obtain redress on anindividual basis for any alleged breach of thatperson’s fundamental rights and freedoms byan application under section 24 to the HighCourt of Barbados, and only by that path.

Judicial Enforcement of Minority RightsTwo cases selected for examination are instruc-tive. They have the potential to display theapproach taken by judges of the High Court

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PROTECTION OF MINORITY RIGHTS BY THECOURTS:THE BARBADOS EXPERIENCE

The Honourable Madam Justice Elneth Kentish,Judge of the High Court of BarbadosA paper at the CMJA triennial conference, 2006.

and Court of Appeal towards the protection ofminority rights and to reveal that issues ofminority rights might arise directly orindirectly and across vastly different areas ofthe law.

Hinds: interlocutory stagesThe first, the case of Richard Hinds, is inter-esting both for the simplicity of its facts andthe different approaches taken by the judges ofthe High Court and the Court of Appeal in itspassage through the court system.

On 1 July 1991 Richard Hinds was arraignedbefore a judge and jury on the charge that on24 December 1988, he unlawfully andmaliciously set fire to a house with intent toinjure. He pleaded not guilty. On 3 July he wasfound guilty of arson and sentenced to impris-onment for eight years. His appeal against thatconviction and sentence was subsequentlydismissed and his conviction and sentenceaffirmed. He did not exercise his right toappeal to the Judicial Committee of the PrivyCouncil, then the final court of appeal forBarbados. Instead, by a notice of motion filed26 July 1993, he applied for redress undersection 24 of the Constitution in relation toseveral breaches of his constitutional rights. Hemade the Attorney General the first respondentand the Superintendent of Prisons the secondrespondent.

One of these breaches, the cutting of his hair, isrelevant to this paper. In his application hesought, pending its determination, a conserva-tory order or an injunction to restrain theSuperintendent of Prisons from cutting or inany way shortening or interfering with his hair.In an affidavit filed in support of his applica-tion, Hinds affirmed, inter alia, that he worehis hair in a style commonly called “dread-locks”, that he had grown them because of hisreligious beliefs and that he wished to retainthem but that the Superintendent of Prisonswas threatening to cut his hair under thePrison Rules.

Rule 87 of the Prison Rules provides:

Arrangements shall be made … for maleprisoners (unless excused or prohibited onmedical or other grounds) to shaveregularly and to have their hair cut asrequired. The hair of a male prisoner maybe cut as short as is necessary for goodappearance.

His application for the conservatory order washeard by Belgrave J. who refused the ordersought. In dismissing an appeal against thedecision of Belgrave J. the Court of Appealstated that ‘the act which Hinds sought toprevent was not irreversible and the case wasnot like one in which an appellant seeks toprevent the execution of a sentence of death’.This logic determined the interlocutoryproceedings for the conservatory order.

Hinds: substantive issuesBefore the substantive application came on forhearing before Blackman J. the original noticeof motion was amended to include as an alter-native claim ‘a declaration that the applicant,while imprisoned at Glendairy Prison … isentitled to practise his Rastafarian religion andthat all attempts to cut and/or shorten and/orinterfere with his hair are and/or would be inbreach of his rights to freedom of conscience,thought or religion as enshrined in section 11of the Constitution and protected by virtue ofthe provisions of section 19 of theConstitution’.

In the course of the hearing, counsel for Hindsrelied on Teterud v Gillman (385 F Supp 153(SD Iowa, 1974; affd sub nom Teterud v Burns522 F 2d 357 (8th Cir, 1975)). Teterud, anAmerican Indian inmate, requested that he bepermitted to wear his hair in the traditionalIndian style for religious reasons. Permissionwas denied. He successfully challenged, underthe Civil Rights Act, the enforcement of theprison’s hair regulation on the ground that theregulation infringed his First Amendment rightto the free exercise of religion.

In his decision Blackman J. distinguishedTeterud from the case of Hinds on the groundthat in Teterud ‘the issue of religion was clearlyand strongly stated at the outset in terms of thesummons and in the submissions before thecourt, but in Hinds religion was not made afocal point either at the [hearing of the] conser-vatory application before the High Court or atthe Court of Appeal’.

He therefore dismissed the application ofHinds for a declaration that his constitutionalright to freedom of conscience, thought orreligion had been infringed, holding that ‘in[his] view the importance of the issue ofreligion ought to have been expressly stated inthe motion as originally filed, and full

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arguments made before the High Court andCourt of Appeal’.

At this point, the application had engaged theattention of two different High Court judges aswell as the Court of Appeal. All three courtshad failed to grapple with the issue. Thisfailure seems to suggest albeit very faintly, areluctance by the courts to accept that ageneral issue of protection of minority rightswas involved in the resolution of the disputebefore them. While it may be true that the issueof religion was only expressly stated in theamended notice of motion, yet four years laterin 1997, the Court of Appeal using the sameamended pleadings as those before BlackmanJ, made a volte-face: Richard Hinds v AttorneyGeneral (Civil Appeal No. 20 of 1997). TheCourt of Appeal recognised that the allegationsby Hinds as to the infringement of his consti-tutional rights could not be side-stepped. Anyclaim for redress for breach of the Constitutionhad to be enquired into.

The claim of Hinds that the cutting andcontinued cutting of his hair was unconstitu-tional was founded on section 19(1) of theConstitution:

Except with his own consent, no personshall be hindered in the enjoyment of hisfreedom of conscience and for the purposeof this section the said freedom includesfreedom of thought and of religion,freedom to change his religion or belief,and freedom, either alone or in commu-nity with others, and both in public and inprivate, to manifest and propagate hisreligion or belief in worship, teaching,practice and observation.

The Court of Appeal considered the affidavitof one Peter Alleyne, a practising Rastafarian,who deposed that the tenets of the Rastafarianreligion, among other things, forbade thecutting of the hair on one’s head and attributedmuch significance to the wearing of dread-locks. It also considered the affidavit of theSuperintendent of Prisons, the gist of whichwas that the Prison Rules required the religiousdenomination of every prisoner to be ascer-tained and recorded upon reception, and thetreatment of the prisoner as a member of thatdenomination until alteration of the records,and allowed for the prisoner to be visited bythe prison Chaplain or a member of thedenomination of which he is a member; and

that from the records of the applicant therewas no evidence of his being a member of anyreligious denomination or of his having beenvisited by the Prison Chaplain or a member ofany other religion.

The Court adopted the approach of the FederalDistrict Court in Teterud that in consideringwhether the hair regulation infringes upon theplaintiff’s constitutional right to the freeexercise of his religion, two issues must beconsidered: firstly, whether or not an Indian’scultural and traditional beliefs constitute areligion, and secondly, whether the plaintiffpossesses a sincere belief in his creed.

Relying on R v Hines and King ((1971) 17WIR 326, a decision of the Court of Appeal ofJamaica), the court accepted that there is areligious sect known as Rastafarians. The realissue, therefore, was whether Hinds was abona fide Rastafarian as the court expressedthe opinion that ‘the mere wearing of “dread-locks” by a male prisoner [did] not ipso factodenote membership of the Rastafarian religionor that his belief is honest, held in good faithor sincere’. On the facts Hinds wasunable to satisfy the second limb of the Teterudtest outlined in since the court held thatnowhere in his affidavit did he affirm or deposethat he was a member of the Rastafarianreligion or that he told the Superintendent orany one else at the Prison that he was amember of that religion. Accordingly, hisapplication for redress failed.

The different treatment by the courts of thesubstantive merits of the Hinds case illustratesa close relationship between a court’s percep-tion of its constitutional role and the finaldecisions it makes defining the scope of humanrights. In turn that constitutional role may beshaped and influenced by the prevailing fears,expectations and aspirations of the society.Unlike today, in the 1980s and early 1990swhen Hinds was engaging the attention ofcourts, neither the Rastafari religion nor thewearing of ‘dreadlocks’ found ready accept-ance within the wider Barbadian society. Thechanging attitude of society towards thewearing of ‘dreadlocks’ and Rastafarians mayexplain away not only the dissimilar treatmentbut also the reversal by the Court of Appeal ofits earlier position.

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PvPChild Care Board v S. P. and N. P and Straker(No. 324 of 1997 (P v P)) arose in the FamilyDivision of the High Court in an area of lawdistinctly different from that of Hinds. On 23June 1997 two minor girls aged 17 and 16 ranaway from home and sought shelter at thehome of a female friend, one Straker. Theywere the children of an East Indian Muslimcouple and Straker was a non-Muslim blackBarbadian. Some three days later the ChildCare Board (the Board) received a telephonecall advising the whereabouts of the girls andrequesting that officers of the Board come tosee the girls.

Two officers of the Board interviewed the girlswho informed the officers that they had runaway because the older, in particular, wasbeing pressed into an arranged marriage with aprospective husband from India whom she hadseen only by a photograph and both werebeing pressured into leaving school becausetheir parents did not want them mixing withboys as this was not allowed under Islamicculture. The girls expressed other grievances:they were not allowed to invite any of theirschool friends to their home; they were bannedfrom using the telephone and were not allowedto stay up at night unless their father was alsoawake; there were also allegations of threats,of aggression and hostility by their parentstowards the girls. The decision to leave homewas triggered by an argument between theyounger girl and her father over an organiser-book he had taken away from her and inwhich he found the names of boys not from theMuslim community. The girls firmly stated thatthey wished to continue their secondary educa-tion and that they did not wish to return to livewith their parents.

The Board also interviewed the parents whoadmitted the proposals of marriage but statedthat after protest from the older girl, theproposals were dropped. The motherexplained that they wished the girls to continuetheir education by correspondence course asunder Islamic culture girls were not allowed tomix with boys. The allegations of threats, ofaggression and hostility were also denied bythe parents.

Against that background the Board filed anapplication seeking orders relating to the

wardship, care and control, maintenance andgeneral welfare of the children.

By a cross application filed by the parents, theissue of minority rights was strongly presented.The orders sought included orders committingthe care and control of the minors to theirparents. The application continued:

Alternatively, an order that the minors doreside with a person or persons of theMuslim faith and/or Indian descentfamiliar with the culture, religion and wayof life of the parties, the names of suchpersons to be provided by the first andsecond defendants and investigated andapproved by the Board;

That in the event the care and control ofthe minor children be committed to aperson other than the first and seconddefendants, that the defendants shallretain all their parental rights other thanthe actual care and control and shall havethe right to decide on the religiousupbringing and education of the minorsand shall have those rights jointly with theCourt; …

That all necessary and proper directionsbe given for the religious education andupbringing of the minors in accordancewith the faith, beliefs and practice of theMuslim religion.

An order that the minors be counselled bypsychiatrist Dr. Ermine Belle who hasintimate knowledge of the family and theMuslim religion and culture and/or that theminors attend and be counselled by a femalepriest/counsellor of the Muslim faith.

Dramatic reports of the matter in the printmedia and in particular photographs of thegirls in shorts, which exposed their uncoveredarms and legs, splashed across the front pagesof the daily newspapers, exacerbated the sensi-tive and traumatic nature of the applicationsbefore the court. What appeared to be the issuewas the right of the defendants as members ofthe minority Muslim community to raise theirminor children in accordance with the cultural,religious practices and beliefs of the Muslimreligion and their ethnic origin. However, aclose perusal of the three orders made by thecourt gives no indication that the applicationsinvolved this issue. As no written decision wasgiven in P v P, the writer sought to ascertain

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the approach adopted by Waterman J, as hethen was, in determining the application frominformal discussion with Waterman JA andwith Reifer J (then counsel for the defendantparents).

Under the first order made on 2 July 1997 thegirls were made wards of court; they were toremain at the residence of the third defendant,a non-Muslim black woman; and they were toattend counselling with access to the parents asspecified. Under the second order made on 9July 1997 a gag order was made, prohibitingpublication by the media of any informationrelating to the applications before the court.The wardship, access and counselling orderspreviously made were confirmed. The girlswere removed from the care and control of thethird defendant. Their aunts were appointed astheir guardians and their care and control werevested in the Board. Under the third and finalorder made on 5 January 1998 the girls wereto be returned to the care and control of theirparents within two weeks; they were to spendweek-ends with their aunts; the wardship andcounselling orders remained except that in thecase of the older girl the wardship order wouldcease on her attaining the age of 18 years.

In the informal discussion Waterman JArevealed that he considered that the applica-tions of the Board and the parents werebrought in an highly charged emotional atmos-phere with strong racial, religious and culturalovertones. It was desirable in the best interestof all parties and the wider society to defusethe situation. Accordingly, he personallyinterviewed the girls. From that interview, heconcluded that the fundamental cause of theproblem lay in the ever-present conflictbetween the needs of adolescents for greaterfreedom, and the strict rules, customs andexpectations of their parents.

He recognised that it was anathema to theparents that the girls had sought refuge in thehome of a non-Muslim black woman and thatthey were also traumatised by the action of thegirls as it reflected negatively on them asparents in the Muslim community. Sensitiveto these unhelpful factors, he steered theparties away from any ventilation of thereligious, cultural or ethnic issues raised in theapplication of the parents. He adopted aconciliatory approach based on communica-tion and counselling, using the personnel

resources of the Board and other professionalsthat would allow healing of the fracturedfamily relationships. Undergirding thisapproach was the recognition and appreciationthat the family unit was of critical importanceto the welfare of the girls and the integrity ofthe family unit would make for their full re-integration into their own culture.

That the methodology used by Waterman J inanalysing the problem and searching for asolution acceptable to all parties, was appro-priate and contained the potential for success,was eloquently confirmed by Reifer J, whorecorded that in her professional judgment,Waterman J ‘had ably and wisely side-steppedthe inflammatory issues which, if pursued,could possibly have had catastrophic resultsand militated against the eventual healing ofthe family unit’.

The approach of Waterman J seems to beconsonant with the proviso contained insection 24 of the Constitution of Barbadoswhich prohibits the court from exercising itspowers of redress if it is satisfied that adequatemeans of address are or have been available tothe applicant under any other law.

ReflectionsP v P did not involve a direct claim by theparents that their right, as members of aminority Muslim group, to raise their minorchildren according to their Muslim religionand East Indian culture was being infringed.The issue arose indirectly in response to theapplication of the Board for orders relating tothe wardship, care and control, maintenanceand general welfare of the girls. Nonetheless,the case illustrates that whether issues of theinfringement of minority human rights arisedirectly or indirectly the court is first obliged toanalyse the facts and circumstances to deter-mine whether a remedy is available to theapplicant under any other law before it canproperly consider the issue under theConstitutional provisions.

On the other hand, the applicant in Hindsraised directly the infringement of his right asa member of the Rastafarian religion topractise his religion freely. Hinds neatly illus-trates that where the court is satisfied thatthere is no alternative remedy available, it mustaccept its responsibility to enquire into thealleged breaches if the applicant is not to be

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denied the protection to which he is entitledunder the Constitution.

Faced with the task of undertaking an enquiryinto claims for redress of constitutional rights,judges must be prepared to make a decision asto whether any particular action is in violationof the human rights provisions enshrined in theConstitution. That enquiry requires an inter-pretation of those provisions and judges mustnot be timid or restrictive in their interpreta-tion as to deprive claimants of the redress towhich they would otherwise be entitled forbreach of their fundamental rights andfreedoms.

The interpretative process is therefore crucialto the proper enforcement of minority rights.In construing the human rights provisions of aconstitution, judges should cultivate an under-standing that the spirit of the constitution isjust as important as the language of the consti-tution. They must diligently search for answersto a central question: what is the nature andscope of the human rights provisions asenshrined in the constitution? That is a neces-sary condition for discharging the obligation ofinterpretation.

While it is necessary that judges approach theinterpretative process with a ‘liberal, imagina-tive and sympathetic mind’, they should heedthe wisdom of Lord Bingham of Cornhill CJ,

as he then was, in a keynote speech delivered atthe Cambridge Centre for Public Law’s WinterConference in 1999:

… it [is] very important that the judgesparticularly the most senior and conspic-uous judges should resist any temptation tocultivate reputations as liberals or strictconstructionists, or anything else. It hasalways been a great strength of our systemthat the judges decide cases as they comewithout giving any thought at all to whetherthis or that decision will be favourably orunfavourably regarded … Judges must notgive thought to their record, and should notbe afraid of accusations of inconsistency orwhat others see as such.

This temptation may well be avoided if judgeswere to regard fidelity to the law and theconcomitant analyses as their touchstone.

Finally, to be effective guardians of minorityhuman rights, judges must be aware of, andsensitive to the range of cultural beliefs,customs, institutions and ways of life that existwithin their society so that decisions on issuesof minority human rights, in particular, mightnot be flawed by their subconscious bias andprejudice. And I suggest that such an awarenessand sensitivity can best be engendered througha sustained programme of judicial training.

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I will speak to you today of the struggles of theprovincial courts because that is where my heartand soul have been for the past thirteen years.However, let me say at the outset that were itnot for the state of democracy in this country wewould not have been able to challenge certaingovernment actions and attitudes so that whilewe have been, at times, critical of variousgovernments, we acknowledge that without thedemocratic process and the recognition by all ofthe separation of powers, we would not haveachieved what can only be described as aremarkable improvement in the independenceof the judiciary in this country.

In the past two decades, Canada has experiencedunprecedented litigation, instigated primarily bythe judiciary who have sued their governmentssuccessfully in a bid to secure financial independ-ence. The history of this litigation serves as amanual of ‘how to’s and ‘how not to’s for estab-lishing the limits to our financial independence.

Prior to all of this litigation the provincialcourt judges in Canada were paid at thepleasure of their respective governments. Oftenthe judges and their representative associationsfound themselves negotiating their salarieswith the very Ministers of Justice whose prose-cutors appeared daily in their courts. It wasnot unusual for the Executive Branches ofGovernment to break promises to the judges.The general attitude was that provincial judgeswere civil servants and were to be treated likethe unionized employees, only without thebacking of a union to protect their interests. Ionce heard a judge declare that he woulddecide cases in a certain way because he knew‘which side of the bread the butter was on’.

We now have a solid jurisprudence dealingwith the principle of judicial independence andour Supreme Court has spoken sometimes withbrilliant insight and sometimes a little disap-pointingly on the subject. However, no one cangainsay that the pronouncement of theSupreme Court in the Prince Edward IslandReference case is anything short of a bulwark.

I recall rather vividly sitting in the chamber ofthe Supreme Court listening to some veryeminent lawyers argue a series of cases, nowcollectively referred to as the PEI ReferenceCase ([1997] 3 S.C.R. 3). Chief Justice Lamerhad queried counsel for the Province of PrinceEdward Island about the test for an infringe-ment on judicial independence and thatlearned gentleman responded, ‘My Lord, youwill know it when you see it.’ Shortly there-after counsel for the Manitoba Judges, Mr.Robb Tonn rose to respond and in a classicretort said to the court: ‘My friend says thatyou will know it when you see it, well myLords and Lady, you are looking at it!’

And what was the Supreme Court looking at?It was a decade of litigation brought in almostevery province in the land by judges and, inone case, by two accused persons who allegedthey could not get a fair trial in the province ofAlberta because the judges’ salaries were at themercy of the very government which wasprosecuting them. This was a shameful situa-tion and one which cried out for relief.

In a judgment which was initially criticised byacademics and politicians, the Supreme Courtof Canada declared that provincial judges weregoverned by the Constitution Act and theirfinancial independence was jeopardized unlessthe process for determining their compensationcould be depoliticised. The Court recom-mended a commission based process should beestablished to recommend in a fair, effectiveand impartial way the remuneration of alljudges. However, the Supreme Court did notrequire that the commissions’ decisions bebinding on the government. Needless to sayonly three governments passed legislationrequiring that the recommendations bebinding: Ontario, Nova Scotia and the NorthWest Territories.

So, how does the commission process work?Well, constitutionally, a commission must beappointed which is itself independent andimpartial. Generally the commissions are

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THE STRUGGLE FOR JUDICIAL INDEPENDENCE INCANADA

The Hon Justice Kathleen McGowan, Ontario Court of JusticeA paper at the CMJA triennial conference 2006.

created by legislation which sets out theircomposition, mandate and term of office. Mostcommissions have at least three commissionersrepresenting the judiciary, the government and aneutral officer who is usually the Chair. Thecommission will set up hearings and invitesubmissions from interested parties and thepublic. Invariably, the most detailed submis-sions come from the judges and the government.The commission will carefully consider all ofthese submissions and then provide a writtenreport with its recommendations. The partiescan return to the commission for clarification orcan seek a judicial review if they feel thecommission has erred. A government thatrejects a non binding recommendation isrequired to provide a rationale which is consid-ered and is not merely a reiteration of its ownposition before the commission.

The inherent problem with a non bindingprocess is that governments have always hadthe luxury of spending the taxpayers’ moneyaccording to political expediency. So, evenwhere a commission makes a completelyrational recommendation for improvements tojudicial compensation, the government mayfeel that the extra money should be dedicatedto potholes or some other endeavour whichwill be more popular with the voting public

Not surprisingly, commission recommenda-tions in some provinces have been soundlyrejected by government, resulting in anotherround of litigation to clarify when govern-ments can reject recommendations and whatremedies exist for failure to comply with theconstitutional requirements for an independentjudiciary.

Let me give you some examples of Governmentdisdain for the process:

Perhaps the most outrageous exampleoccurred in Saskatchewan in the 1990’s. Inconsultation with the judiciary after muchexpensive litigation a statute was passed whichcreated a transparent and binding commissionprocess for provincially appointed judges.Under this process the government appointedthe Commission which conducted fullhearings. Of course the Government partici-pated in those hearings. The commissionawarded a salary increase which the govern-ment found to be unpalatable and reacted bypassing legislation to repeal the Commissionprocess, abolish that Commission, void its

award and provide retroactively that no rightswere created by the Commission award, andno action could be brought to enforce thecommission’s recommendations. Only afterlitigation which was clearly headed to theSupreme Court of Canada did the Governmentback down and reinstitute another commissionprocess, albeit not a binding one.

Let’s look at some other examples. The provin-cial judges of Quebec have had threeCommissions in a row, all appointed by theQuebec Government of the day, all fully partic-ipated in by those Governments, all withexpert evidentiary input, all recommendingimprovements in salaries and/or pensions forthose judges, who have very broad jurisdic-tions but abysmally low wages. And every oneof those awards has been dishonoured andrejected by the government.

Most recently, all federal judges in Canadawere affected by a Government refusal toimplement the recommendation of anindependent Quadrennial Commission, whichawarded the judges an increase of approxi-mately 10%. The minority Liberal Governmentindicated it would introduce legislation toimplement the salary increase. Unfortunatelythe Bill died on the Order Paper when thegovernment fell. The new ConservativeGovernment decided not to endorse thatrecommendation and instead introduced a Billauthorizing a raise of only 7.25%.

In the past decade, there has been litigationover government refusals to honour the recom-mendations or awards of these constitutionallyrequired commissions, in every province saveNova Scotia.

In a 2005 decision called Bodner (see the June2006 issue of this Journal, at p. 35), theSupreme Court of Canada reviewed the test itset in the PEI Reference Case for a govern-ment’s right to reject a commission’srecommendations and set parameters for thejudicial review of government’s actions. TheCourt noted at paragraph 30 that thereviewing court

‘must focus on the government’s responseand on whether the purpose of thecommission process has been achieved.This is a deferential review whichacknowledges both the government’sunique position and accumulated

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expertise and its constitutional responsi-bility for management of the province’sfinancial affairs.’

In terms of remedy the court concluded atparagraph 44 of the judgment:

‘…if the commission process has not beeneffective, and the setting of judicialremuneration has not been ‘depoliticized’,then the appropriate remedy will generallybe to return the matter to the governmentfor reconsideration.’

With respect I sincerely doubt that you canremedy a politicised decision by sending itback to the politicians for review. I can onlyhope that Supreme Court’s belief in govern-ment’s good faith proves better than mydoubts.

Chief Justice Lamer called for the depoliticisa-tion of the compensation process for judgesand to an extent that has happened. However,there is still too much political pressure ongovernments to reject salaries that may lookimpressive to the average wage earner. Sadly,the friction between the executive and judicialbranches of government has not abated, eventhough that is clearly the intent of the commis-sion process.

I began my comments today by pointing outthat we have learned the ‘how to’s and ‘hownot to’s of establishing a financiallyindependent judiciary. I conclude by pointingout that experience has taught us that if we areto have an effective and truly financiallyindependent judiciary it is absolutely essentialthat we achieve a divorcing of politics fromjudicial compensation. Those of us who havebeen involved in this struggle for a number ofyears believe that a truly effective judicialcompensation commission in Canada must be

independent, transparent and effective andhave the following attributes: it must beregular, that is, appointed on a statutoryscheme every three or four years; it must beappointed on time within its mandate; itshearings and recommendations must be publicso as to be accountable; one or all membersmust be legally trained; Government and thejudges must both have meaningful input intothe membership of the Commission; theCommission must have the jurisdiction toretain outside experts; and finally, it must bindboth the government and the judiciary.

Let me now close with a short story that illus-trates wonderfully just how important it is thatjudges be the guardians of their own independ-ence. The story was told to me by a highlyrespected judge who has long since passedaway. This fine gentleman was appointed tothe bench in the early 60’s and as was thecustom in his jurisdiction his salary was paidjointly by the province and the municipality. Apractice had developed whereby the CrownAttorney and the Chief of Police would meetwith the judge before court every day andreview the docket and decide what was goingto happen with the cases. The learned judgethought that this practice was improper andannounced that he would discontinue it. TheChief of Police complained to the Mayor whodirected the judge to reinstitute the practice orhave his salary reduced. The judge refused andin short order a bylaw was passed reducing themunicipality’s portion of his salary to $1.00 ayear. Fortunately for the judge, the CrownAttorney recognized that this was wrong andeventually the province took over andreinstated the judge’s full salary and the judgewent on to establish a well deserved reputationfor fairness.

I rest my case.

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When considering the possible problems ofjudicial office, few would anticipate that theymight include the need to deal with a revolu-tion or similar civil unrest. Most of us canconfidently assume we will complete ourappointments without any such problem. Wehave been able to read of the testing timesjudges have experienced in, for example,Southern Rhodesia, Grenada or Lesotho withinterest and often sympathy but in the knowl-edge it will probably not happen to us (eg seeMadzimbamuto v Lardner-Burke [1969] 1 AC645; Mitchell v DPP [1986] LRC (Const) 35;Makanete v Lekhanya [1993] 3 LRC 13).Happily, for the vast majority ofCommonwealth judges, such situations arelikely to continue to be of academic interestonly.

That was certainly the position in the smallisland Commonwealth countries of the SouthPacific. Most achieved independence in theperiod from 1963 to 1980 and showed, forsome years, a remarkable degree of politicalstability. The judges in those countries hadevery reason to feel secure, safely protected bythe terms of recently negotiated and acceptedconstitutions. Unfortunately, events in Fiji in1987 not only shocked the region out of thatcomplacency but also seemed to be the triggerfor varying degrees of political unrest aroundthe region.

Whenever such a situation arises, the judgeswill have to make an assessment of the statusof the new regime and its legal effect on theirposition. Judgments from other jurisdictionswill assist and it is not the purpose of thispaper to deal with that aspect.

Taking four examples, I would like to look atthe more immediate, practical side, namely themanner in which the judges themselves shouldreact - particularly in the early moments whena step in the wrong direction may well set thejudiciary on a course it will be hard to correctlater.

Fiji: the first episodeThe first trouble in Fiji arose in 1987 in whenmembers of the military entered Parliamentand took over control from the elected multi-ethnic Labour government.

Although the coup was largely bloodless, therefollowed a period of instability with a markedbreakdown of law and order. The judges andmagistrates reacted quickly by meeting withthe then Chief Justice in order to decide on acommon approach. They discussed the legalityof the new regime and agreed that they shouldmake it clear that the Court would continue tosit on the authority of their appointmentsunder the provisions of the Constitution.Notes were sent, for example, to the GovernorGeneral stating the Court’s position.

Over the next few weeks, the judges held courtsittings as normally as possible. The militaryauthorities reacted by placing some underhouse arrest. One judge continued to hearapplications for habeas corpus in his home.Another judge was imprisoned without chargeby the authorities and remained in prison forsome days.

Eventually, following a demand by the militaryhead of the government that they should takean oath of allegiance to the new regime, theHigh Court and Court of Appeal judges andmost magistrates resigned. A fresh judiciaryappointed from candidates willing to take thenew oaths was greeted with derision by thelegal profession and the court lasted only avery short time.

The military regime was able to remain inpower and eventually produced a newConstitution by decree which was followed bythe election of a government. However, it tooksome years to re-establish the judiciary. It isnotable that, when some of the previous judgesagreed to return once an election had beenheld, their return was applauded – a reactionwhich was, I feel, an acknowledgment of theirearlier principled stand.

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FROM UPHEAVAL TO INSURRECTION THE COURT’SROLE: A SOUTH PACIFIC PERSPECTIVE

The Hon Justice Gordon Ward, Justice of the Supreme Court of the Fiji IslandsA paper at the CMJA triennial conference 2006.

Fiji: the second episodeThe country struggled reasonably successfullyto recover from the adverse effects of the coup.In 1997 a new Constitution was unanimouslypassed by Parliament. In 1999 the first generalelection under the new Constitution againresulted in a Labour-led coalition, this timewith a Fiji-Indian Prime Minister. Next year, inMay 2000, a group of armed Fijians supportedby units of the Army, invaded Parliament, tookmembers of the Government hostage and heldthem in the Parliamentary complex for somemonths.

The judiciary again needed to make similardecisions to those in 1986. They were advisedthat they should continue as judges but asappointees of the, by then, military regimeunder a ‘deemed’ military Oath of Office.

Unfortunately, the judiciary did not reach anyconsensus. Although the Chief Justice called ameeting of some of the judges, they were splitas to the position they should take. Themajority of judges felt they should acknowl-edge that the Constitution had been abrogatedand accept the de facto legitimacy of themilitary government. A minority insisted thatthe Constitution remained in force and thatthey were bound by the oaths they had takenunder it. Despite the failure to agree, the ChiefJustice made a public statement that thejudiciary supported the military. The courtscontinued to sit but with the minority makingit plain that they continued to regardthemselves as sitting under and bound by the1997 Constitution.

One of those judges stated the position as shesaw it (Shameem J, ‘Maintaining JudicialIndependence in Fiji’, International WomenJudges’ Conference, 3-7 May 2006):

‘Then came a period of uncertainty. Amember of the public challenged theabrogation of the Constitution in one ofour courts, but his challenge was notheard for six months. (Chandrika Prasad vRepublic of Fiji and the Attorney Generalof Fiji, HBC 217/2000 in which Prasadfiled an originating summons for a decla-ration that the 1997 Constitution was stillin force as the supreme law of Fiji). Howdid we maintain judicial independencewhen the judiciary itself was divided andthe Chief Justice was supporting theexecutive? … It was certainly a most diffi-

cult time for those of us who tried touphold the rule of law against our owncolleagues. The difficulties arose in severalways …’

The difficulties she described included theselective allocation of controversial cases andthe transfer of some of the minority judges tothe criminal division. In fact the problems wereeven more profound. The Chief Justice andother High Court judges advised the militaryand assisted by drafting legislation including ajudiciary decree setting aside Constitutionalprovisions relating to the court system.

Fiji is a relatively small jurisdiction and sothese actions soon became public knowledge.The President of the Fiji Law Society, PeterKnight, wrote to the Chief Justice on 9 June2000 stating the ‘strong views’ of the legalprofession:

‘… that the involvement of the Judiciary inhelping the military draft the decree of theadministration of justice is inconsistentwith the position that the 1997Constitution has not been abrogated. … Itis not the function of the Judiciary toexercise legislative powers … In our viewthe judiciary has failed in its oath touphold the 1997 Constitution … It cannotbe seen openly to condone criminalactivity. It should state as a matter ofrecord that it will continue to occupy andfunction in its judicial role in the sameuncompromising manner as it had doneprior to 19th May.”

The Fiji Court of Appeal at that time consistedprimarily of judges from neighbouringcountries, principally New Zealand andAustralia. One of the judges (from NewZealand) sent an email to the members of theCourt suggesting that the ‘Australian and NewZealand judges’ should resign. He referred,with some justification, to the situation in Fijiat that time as a step towards apartheid.However, following further correspondencebetween the members of the Court, it wasagreed they should assess the situation purelyas Fiji judges and, as such, their duty was tocontinue to sit in accordance with theirappointments under the Constitution. By thattime, the stance taken by the High Courtjudges was known. The Court of Appealjudges all continued to sit.

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In March 2001 the interim government’sappeal in Chandrika Prasad reached the Courtof Appeal. The decision of the interim govern-ment to challenge the decision through thenormal appeal process was, I believe, anacknowledgment of the continuingindependent stance that the Court of Appealhad maintained. The Court dismissed theappeal and declared, inter alia, that the 1997Constitution had not been abrogated andremained the supreme law of Fiji.

Solomon IslandsSolomon Islands consists of a number of majorislands each of which has some degree ofautonomy exercised through a provincialcouncil. There are considerable racial andlinguistic differences between, and indeedwithin, the provinces. The capital, Honiara, ison Guadalcanal and, inevitably, has represen-tative populations from all the regions. Thosefrom the neighbouring island of Malaita werenumerically and influentially the largestminority and, historically, there had beenstrong rivalry between the peoples ofGuadalcanal and Malaita.

Simmering discontent in the Guadalcanalpeople, arising from the feeling their provincewas being taken over, suddenly erupted intoserious violence in the 1990s. Rival militiaswere formed and violent clashes resulted inmany deaths, serious violence and substantialdamage to property. In a depressingly shortspace of time there was effectively a totalbreakdown of law and order and of normalcivil administration and a situation little shortof civil war prevailed in much of the country.

Despite the danger and the almost total lack ofan effective police force, the courts decidedthey must attempt to continue to function. Itwas a brave step and more than one judicialofficer was threatened. In one case, a magis-trate was severely beaten up and injured. Thelack of an effective police force meant that anycriminals had to be left at large because neitherthe police nor the prisons could hold them.Effective protection for the judges was impos-sible.

The lack of police, of prosecution and of othernormal processes effectively prevented thecourts functioning except in a very smallnumber of cases. However, the members of thejudiciary ensured that the courts did sit and

could be seen to do so. Following the arrival ofa regional intervention force, RAMSI, and therestoration of law and order, the court systemwas still intact and ready to function.

TongaThe last example is Tonga and is from theopposite end of the spectrum in terms ofchallenges to the judiciary. The problem arosefrom an attempt by the government to ban anewspaper which was frequently critical of thegovernment and more recently had extendedits criticism to individual members of the royalfamily. A number of methods were used by theGovernment each of which was, in turn,successfully challenged in court.

Following this, the Princess Regent withheldthe royal assent to three minor bills which hadbeen requested by the court. Her stated reasonswere taken up by some Cabinet Ministers inParliament and led to a sustained personalattack on the Chief Justice and the previousAttorney General in Parliament. Although thesole purpose of the bills was to bring the lawinto line with a recent Court of Appeal rulingon the selection of criminal juries, allegationswere made that the purpose of the bills was toassist the previous Attorney General tochallenge a jury in a civil action in which hewas engaged against one of the same ministers.The attack was unjustified and misrepresentedthe effect of the bills but the Chief Justicereceived no support from the AttorneyGeneral.

The Chief Justice was due to go abroad beforethe next sitting of Parliament and so he wrotea note setting out the old and new provisionsand explaining the meaning and purpose of theamending bills. A copy was addressed to eachMember of Parliament. All copies were seizedon the orders of the Minister who had led theattack but one copy was overlooked. Whenfound by a Member, it was copied and distrib-uted to all Members.

The consequencesThese were three different countries and verydifferent situations but each required thejudiciary to decide how to confront anunexpected change in what had, hitherto, beenfamiliar ground. In each case, public confi-dence in the courts was at stake.

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In the Fiji cases, the judiciary, although led bythe same Chief Justice on both occasions,followed very different courses. The coursefollowed in the first coup was, I suggest,sensible and proper. The judiciary met andonly acted in a way upon which all agreed.Although they had to resign in the end, prior tothat the judges had made the court’s stance onthe Constitution clear and reassured the publicthat any challenge could still be determined byan impartial and independent judge. When,later, the courts were to be re-established, someof the previous judges returned with theirintegrity unchallenged.

On the second occasion, I believe wrongdecisions were made. It must be acknowledgedthat it was very difficult situation. The legiti-mate government had been overthrown byusurpers proclaiming themselves to be thegovernment. The hostages’ lives were inserious danger and it was clear that a wrongstep could increase the risk. The military wasclaiming to have taken over in order to avoidmore serious breakdown of law and order but,whatever the motives, it too was actingillegally and the decrees it passed were basedon its assertion that the Constitution had beenabrogated.

The public needed to know the true position. Iwould suggest that, at that point, the judiciaryhad no justification in considering themselvesreleased from their oaths to uphold theConstitution. The court had no responsibilityfor the maintenance of order; that was for theexecutive. Its duty was to uphold theConstitution until it had been lawfullyabrogated and to reassure the public of theposition by a clear statement. This was no‘glorious revolution’ greeted with universalacclaim, neither had it reached a positionwhere the doctrine of necessity applied.Instead, the Chief Justice declared the judiciarysupported the illegal military administration, apolitical statement, and soon after that, itsactive provision of advice and assistance indrafting decrees also became public knowl-edge. The only avenue for members of thepublic to challenge the legality of the militaryregime was still through the courts but thatstatement and the actions of the judiciarysuggested the issue had been predetermined.

When differences of opinion appeared betweenthe members of the judiciary, they were not

resolved before action was taken. Perhaps itwas thought that the situation in the countrydid not allow time to resolve them but it isclear the concerns of the minority judges wereoverridden or disregarded. At the time, theunfortunate effect was that it became publicknowledge that some courts accepted thecontinued existence of the Constitution andothers did not. The scope for forum shoppingwas demonstrated only too clearly whenmembers of the judiciary themselves attemptedto re-allocate constitutional cases. The seriouslong term effect is that, whilst some middleway might have been found at the time, failureto do so has left deep divisions which have notbeen healed to this day and public respect forthe courts remains at a low ebb.

Members of the Solomon Islands judiciary,especially the magistracy, were in seriousdanger both personally and in respect to theirfamilies. The lack of any effective police forcemeant the magistrates’ courts had very fewcases in the areas where the trouble was mostintense and so they were able to maintain arelatively low profile. However, as has beenstated, that was not, in itself, sufficient toremove the danger and continuing to sitrequired considerable personal courage.

The courts are now firmly establishedthroughout the country and are rapidlyclearing the inevitable backlog which grewprior to the arrival of RAMSI. The public as awhole appears to recognise that the courtshave never changed and present confidence inthe system stems from the determination of thejudges to maintain their constitutional role.

In Tonga, the action of issuing a written expla-nation arose from the lack of any other way ofexplaining the judiciary’s position inParliament. Had it been possible to rely on theAttorney General to do so, there would havebeen no need for the action taken. However, Iconsider the issue of an explanation by thejudiciary itself was, in retrospect, unwise andled to an unfortunate result.

Whilst the intention had been to explain thebills in an uncontroversial way, theunexpected, unauthorised manner in which itwas distributed gave increased significance tothe note and drew the court, as a result, intothe debates almost as if it was a party to thepolitical struggles then going on in Parliament.

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In the event, the matter died a rapid death butit left a rift between the courts and somemembers of Cabinet which took many monthsto heal. Had there been a court information ormedia officer, the personal involvement of thejudiciary could have been avoided.

The lessonsAs I have stated, the purpose of this paper isnot to advise on the legality of such situationsbut to see if there is any way in which judicialofficers can be ready, faced with suchunexpected events, to act in a manner that willbe most likely to ensure the best course isfollowed.

The principal lesson we can see from theseexamples is that neither the likelihood of such asituation arising nor the form it will take can bepredicted. Thus no formal suggestions or proce-dures can be formulated. However, it is almostcertain that in any such situation, the independ-ence and the integrity of the judiciary will bedirectly challenged or indirectly placed in peril.

Undoubtedly the consequences of anydecisions made or actions taken will beprofound. As these cases show, a wrong stepmay cause serious and possibly permanentdamage to the reputation of the court whilst agood decision could strengthen public respect.In the end, each situation will present its ownindividual problems and so the following canbe no more than suggestions based on ourexperiences in the South Pacific.

1. The first, immediate step should always beto summon a meeting of all, or as many aspossible, of the judicial officers.

At that meeting, the principal aim must beto reach consensus on the course to betaken. The situation and its effect on alllevels of courts should be ascertained andany decision taken should apply to allcourts. Inevitably the magistrates will bemore exposed to direct interference andthat may be exacerbated by geographicalisolation in many cases. Care must there-fore be taken to ensure they are fullyinvolved in the discussion.

2. No action should be taken which acknowl-edges an abrogation of the Constitutionunless and until it is accepted as theinevitable consequence by all the judicialofficers who will have to act under it.

It is hard to envisage any case, apart from aclear ‘glorious revolution’, where theproper decision can be other than to adhereto the Constitution, abide by the officers’judicial oaths and maintain the legal andconstitutional position of the courts whichexisted before the challenge arose.

3. No public statement of the court’s positionshould be made until the meeting has beenheld and reached consensus.

Once it has been reached, the court’sposition must be clearly stated to thepublic by the senior judge on behalf of thewhole judiciary. No statement should bemade which appears to suggest any polit-ical stance.

4. Where unanimity is impossible, the courtshould continue to uphold theConstitution under the terms of thejudicial oath.

If the dissenting view is to accept theabrogation of the Constitution and is heldby a very small minority, the minorityjudges should be taken off court work untilany appeal process has been concluded. Itis undesirable that the public should seethat the sitting judges are divided.However, all judicial officers should appre-ciate that the decision involves seriousconsiderations of personal integrity andthey should respect the decisions of judgeswho may hold differing views.

As I have stated, I am dealing with thistopic solely from the South Pacificperspective; a region which has been fortu-nate in the lack of violence in most cases.I appreciate that judges from other partsof the world may feel that the situationplaces their personal safety in such perilthat it becomes the principal considera-tion. That must be a matter for eachindividual judge but, if his decision isbased on such considerations, he shouldmake that fact plain to his fellow judges.Whilst expediency should not be part ofthe decision about the position of thejudiciary as a whole, it must be borne inmind that each judge’s personal decisionmay involve issues of personal security orof the safety of close family members. Insuch cases, special arrangement may haveto be made.

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Where there is any comment by the newregime or in the media about the positionadopted by the court, it should only beanswered after consultation with alljudicial officers.

If there is a media officer or officialspokesperson, all subsequent public state-ments should be made through that officer.If not, they must be made only by thesenior judge on behalf of the wholejudiciary.

6. Any demand by the illegal regime thatjudicial officers take an oath which iscontrary to the constitutional oath should

be refused by the senior judge on behalf ofthe whole judiciary.

The principal duty of all judicial officers isto maintain the courts under theConstitution. If the only alternative is resig-nation it should be by the whole judiciaryand stated to the public to be such.

The overriding aim must be consensus. If that isachieved, all statements and actions can be madeby the judiciary as a body and all public utter-ances can be made solely by the senior judge onbehalf of the judiciary as a whole. Unanimity isprobably the greatest safeguard against unlawfulaction against any individual judge.

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DOROTHY WINTON TRAVEL BURSARIES FUNDCONTRIBUTIONS WELCOME

This fund was set up in the name of the first Secretary of the Associationwho died in October 2003. Dorothy’s time as the first Secretary of theAssociation was a very happy one and she was very concerned that justice(and support for justices) should be available to poor and rich nationsalike.

“She had considerable knowledge of the Commonwealth, a genuineinterest in its people and she was prepared to travel extensively to promotethe Association, being especially concerned that people from the less welldeveloped countries should be able to play a full part.” Stated BrendaHindley, former Editor of the CJJ.

The CMJA and the family of Dorothy Winton want to thank those whohave already contributed to the this fund and which was used to assistparticipation of three magistrates from Malawi, Uganda and the SolomonIslands at the CMJA’s 14th Triennial Conference.

The Bursary will be used to assist participation of judicial officers toattend the Triennial Conferences of the Association in future.Contributions to the Bursaries should be made (by cheques drawn on a UKbank, bank transfers- making clear what the transfer is related to or bankersdraft made payable to CMJA) and should be sent to the CommonwealthMagistrates and Judges Association at Uganda House, 58 Trafalgar Square,London WC2N 5DX, UK.Please remember that as a registered charity, the CMJA can reclaimtax paid by UK tax payers. If you include your name and address (eg onthe back of the cheque), we can send you the form to fill in for gift aidpurposes - a simple declaration and signature.

One of the arrangements made at the time ofKenya gaining independence from Britain wasthat the Ministry of Agriculture and theJudiciary would still, to some extent, remain inthe hands of the British. The Ministry ofAgriculture was headed by white Kenyans tosafeguard the agriculture sector and to ensurethe fair distribution to the Africans of land,whilst the judiciary retained a majority ofexpatriate Judges, Magistrates and personnel atthe level of the Court of Appeal and the HighCourt. They served under contracts, and theirsalaries were supplemented by the BritishGovernment. This meant that their terms ofservices were better that those of the localKenyans.

When it came to dealing with misconductwithin the Judiciary, it would often be left to theRegistrar of the High Court of Kenya to dealwith the Magistrates. It was envisaged that theJudges would require no discipline. There waslittle done to instill discipline in the Judiciary,especially as the bench was being Africanized.Cases of Magistrates being drunk on duty, withno action taken, encouraged some Magistratesto become bold enough to take bribes. In the1980’s a lady Magistrate asked a litigant for abribe. Not being satisfied after she was paid, sheasked for more, this time for a trip to Londonwith her boyfriend together with the fullpayment of her shopping bills. On her returnshe asked for Kshs. 50,000/- more and was paid.The litigant on attending court found a differentmagistrate handling his case and understand-ably rightly fainted. The lady magistrate hadbeen asked to resign.

There had earlier been instance of two judgeswho were alleged to have been corrupt but noaction had been taken. A new Chief Justicecalled the two judges to his chambers andconfronted them with the allegations. Bothaccepted that they ought to retire.

WeaknessesThe Executive weakened the Judiciary byappointing Chief Justices two to three years

before their retirement age of 74 years; sinceindependence 1963, Kenya has had 11 ChiefJustices. In the 1980s and until 2003 there hadbeen 8 Chief Justices appointed for a period of2 to 3 years. (This is an average of 2.5 yearsper Chief Justice.). This rapid change of ChiefJustices undermined the ability of the Judiciaryto put in place a system that would safeguardit from interference by the Executive and itsindependence. Each Chief Justice would dealwith corruption in a different way. The mostcommon method used in Kenya would be toappoint a senior judge to investigate anotherjudge or magistrate who was said to be corruptand report to the Chief Justice. An adversereport would lead to the transfer of such ajudge or magistrate to another station. This didnot solve the problem and no-one had actuallybeen taken before any tribunal.

Another Chief Justice, in order to deal withindiscipline, because a judge refused to go ontransfer, went to the Executive and Parliamentand amended the law to remove judges’security of tenure in order to give the ChiefJustice power to discipline that judge.

The effect of this was to have the Executiveinterfere in the decision-making of individualjudges.

Steps TakenDuring the period 1960 to 2006, there hadbeen several commissions and committees setup dealing with the Judiciary. Out of all these,I will deal with five. At first the inquiry dealtwith the issue of security of tenure wheremagistrates and judges were employed oncontract with only a few being on permanentand pensionable terms. Security of tenure wasimportant safeguard the independence of thejudiciary. Judges who were employed oncontract were fearful that their contracts wouldnot be renewed, and this created a ‘culture offear’. The Chief Justice of Gibraltar as a judgein Kenya recalls being told by the Chief Justicethat his contract would not be renewed if he didnot handle a certain case in a certain manner.

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DEALING WITH CORRUPTION IN THE JUDICIARY:THE KENYAN EXPERIENCE

The Hon Lady Justice Mary Angawa, High Court of KenyaA paper at the CMJA triennial conference 2006

The Warihuhu Committee report of 1980 recog-nized that the courts required to be localized withKenyans. The absence of effective training meantthat the transition to a local bench was not effec-tively carried out. Because the salaries ofexpatriate judges were supplemented by theirrespective countries, they did not raise the issue ofhigher judicial salaries. There were weaknesses inthe courts administration. Training of supportstaff was seen as lacking. The courts were notsituated in the respective provinces and a recom-mendation was made to decentralize the courts tomake them accessible to all.

The Mbithi committee report of 1991 and theKotut committee appointed to inquire into theterms and conditions of service of the Judiciaryrecognized that improved terms of service werecrucial. The judiciary should be allowed torecruit its own personnel. The delinking thejudiciary from the Civil Service was alsorecommended. This was to have been imple-mented by the Akiumi Committee.

In 1998 the Kwach committee on the adminis-tration of justice recommended that there beenhancements in court performance, physicalfacilities and case-load management. For thefirst time it recognized that corruption was aproblem. Though the recommendation of thiscommittee were to have been implemented bythe Hon Mr. Justice Gicheru, there was anabsence of political will. Three other commit-tees in their reports in 2002, 2003 and 2006called for the full implementation of this report.

The Report of the Integrity and Anti-Corruption Report Committee of 2003 (theRingera report), a committee set up during theKibaki Government exactly five years after the1998 report, came out boldly in recognizng thatthe problem of the judiciary was not rooted inthe non-delivery of justice, incompetence orinefficiency but was rooted in corruption. Thiscommittee was asked to investigate ‘the nature,level and impact of corruption in the judiciaryand make recommendations’. It named 23judges (out of 50), 82 magistrates (out of 250)and 43 paralegals as being involved in corrup-tion. Many of the judicial officers resigned. Afew remained to face the tribunals. Only oneCourt of Appeal judge had been cleared and isnow back to the bench in the same grade that heheld before. Magistates named appeared beforethe Judicial Service Commission and some have

been absolved as not being corrupt and are backto work.

The Effect of CorruptionThe Judiciary had reached a level wherecorruption was crippling it, and it no longerhad the moral standing to deliver justice. Thishad been recognized and acknowledged by theAdvisory Panel of eminent CommonwealthJudicial experts a year earlier in 2002. Whilstthe experts were examining the discussion-draft of that chapter of the Constitution ofKenya dealing with the Judiciary, they weregiven a mandate to make recommendations onthe Judiciary generally and in particular theestablishment and jurisdiction of the courts toadminister the measures necessary to ensurethe competence, accountability, efficiency,discipline and independence of the Judiciary.During their investigations ‘the panel wasshocked and dismayed by the wide-spreadallegations of corruption in the KenyanJudiciary… The public confidence in theindependence and impartiality of the judiciaryhad virtually collapsed’.

Though the Judiciary had earlier taken steps bysetting up a Judicial Code of Conduct, it hadnot been full implemented. Anti-corruptioncourts were set up administratively but werechallenged as having no proper legal basis fortheir legal existence. The new governmentrepealed the Prevention of Corruption Act(Cap 65) and in its place enacted the Anti-Corruption and Economic Crimes Act 2003(No. 3 of 2003). The former Act and the PenalCode set lighter penalties whilst the latter Actestablished an enhanced maximum sentence.The discrepancy between the Penal Code andthe Anti-Corruption and Economics CrimesAct 2003 still needs to be resolved.

When the Ringera report was released, themethod of exposing corruption by judges andmagistrates was most certainly not in line withthe Rule of Law. A list of the named Judgeswas published in the papers. This meant thatthe right to be heard before being condemnedwas denied to those judicial officers. Even theHon. Justice Kanyeamba admitted that thismethod of exposing alleged corrupt judicialofficers was incorrect. It was a methoddescribed as radical surgery necessary tocombat corruption so that it was permanentlyeliminated. The Kenyans obtained much praisefrom all over the world for this bold action.

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Indeed those effects are felt where you nowhave judges and magistrates delivering well-researched judgments with an ever-improvingcourt process and structure.

The fight against corruption continues, withmagistrates being arrested and charged withcorruption as recently as a few months ago.Action is now being taken immediately formisconduct. To this end, the Hon. Justice J. E.Gicheru is to be highly commended for thebrave, bold and courageous action that he hastaken in fighting corruption. The Chief Justiceset up the latest committee in March 2005 andit delivered its report in January 2006. Thiscommittee took a more humane way of dealingwith corruption. The purpose of thecommittee, known as the Ethics andGovernance Sub-committee of the Judiciary(the Onyango-Otieneo committee) was tocollect information relating to the integrity ofthe entire judiciary staff and court process. Itwas to investigate all cases of alleged corrup-tion and unethical behavior and otherallegations of lack of integrity.

The present situationThe Judiciary therefore recognized that thefight against corruption was not over. TheOnyango-Otieno Committee on receivingallegations of corruption would require theparticular officer to reply to the said allega-tions. Any complaint put to the committeewould be held in confidence. The name andaddress of the complainant was required to bedisclosed. This was to ensure that thecomplaints were not merely malicious. Theright to take further action rests with the ChiefJustice. Positive steps are being taken in Kenyato deal with corruption. As the saying goes,‘Rome was not build in a day’. The vice ofcorruption will take a long time to eradicate.

But, if you ask the common man in the streetabout corruption in the judiciary, he would saythat corruption is worse today that ever before.How can this be with the reforms undertaken?The cost of paying bribes has gone up, but isstill is affordable by the rich. Corruption todayhad become subtle and invisible. Dealing withcorruption when you can see and identify it iseasy. Just set up a trap and make your arrest.

But when the corruption has become invisibleand so subtle that you cannot recognize it,identify it, or detect it, it is much more difficultto deal with.

The other crucial problem may be that manyof the judicial officers may not know whatcorruption is. The Ringera Committee recom-mended that there be education as to whatamounts to corruption. For instance, a magis-trate adjourned a matter to 2.30pm of thesame day. The advocate attended at 2.00 pmand waited for one hour. Neither his opponentnor the magistrate was present. On makinginquiries, he is told that his matter had beendealt with at 1.30 pm in chambers. Onexamining the court records, they showed thatthe matter had actually had been dealt with at11.30 am. Without a doubt justice had beenperverted. This is corruption.

The Kenya Magistrates and JudgesAssociation, the Kenya Women JudgesAssociation and the Judges WelfareAssociation can rise to the occasion and playan important role. Educating its members onanti-corruption behaviour can be effective. TheKenya Magistrates and Judges Associationhave taken up the mantle and produced aproposal entitled Demystifying theAdministration of Justice in Kenya (February2006). Part of the recommendation in theproposal is for a peer-review mechanism. Thisis where pressure from colleagues is brought tobear upon the corrupt judicial officers to desistfrom being corrupt. The officers know eachother and are the best persons to police eachother and the paralegal staff. The proposal alsourges that members of the public should besensitized and educated as to their rights byhaving an open day in court. This proposal isyet to be funded and implemented.

ConclusionCorruption in the judiciary is real. To deal withit requires acceptance that it does exist.Judicial officers may not actually know corrup-tion apart from direct bribe-taking andinterference from the Executive. Education ofjudicial officers, and also the computerizationof court records, may solve the problem.

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Acting judges – whether successive appoint-ments as Acting Judge permissible – issues ofjudicial independence

The prosecution in this murder case wished torely on evidence obtained by interceptingcommunications on the authority of a warrantissued by Neazor J, an Acting Judge of theHigh Court. Neazor J was initially appointedan Acting Judge in August 1998; after succes-sive re-appointments he had served as anActing Judge for four and a half years at thedate of the warrant. The relevant legislation, s11A of the Judicature Act, empowers theGovernor-General to appoint any formerJudge to be an acting Judge for such term notexceeding 2 years … as the Governor-Generalmay specify. There is no provision correspon-ding to that in s 11 of the Act, dealing withtemporary judges, that ‘Any person appointeda Judge under this section may be re-appointed, but no Judge shall hold office underthis section for more than 2 years in the aggre-gate’.

It was argued for the appellants that the powerto appoint a former Judge as an Acting Judgewas limited to one term not in excess of twoyears and that therefore Neazor J ought not tohave held office at the time he issued thewarrant. Or that Acting Judges were confinedto ‘non-sitting judicial functions’ and that theissuing of interception warrants was outsidethat category.

THE COURT noted that non-tenured Judges,holding either temporary or acting warrants,were used not only in the High Court but alsoin the District Courts and the Supreme Court.It recognized that a retired Judge who holds anacting warrant might well wish to secure arenewal of that warrant. It was not altogetherfar-fetched to suppose that a Judge whobecame unpopular with the government of theday would not receive appointment (orrenewal of appointment) as an Acting Judge. Itwas still less far-fetched to suppose that Judges

might come to believe that. That meant thatthere was scope for the perception that Judgeswho were concerned about reappointment onan annual or biennial basis, and thus might beanxious not to create any waves, were not asindependent as those who had permanenttenure.

The Court cited decisions in a number of otherCommonwealth jurisdictions, including Starrsv Procurator Fiscal (1999) 8 BHRR 1 andMillar v Dickson [2001] 1 All ER 1041striking down the use of temporary sheriffs inScotland, and Valente v R [1985] 2 SCR 673,the Canadian decision concerning actingjudges holding office during the pleasure.However,

‘Given the possibility of judicial promo-tion, our judicial system cannot fullyinsulate Judges from the accusation thatthey are, for this reason, tempted to favourthe Executive. Indeed, the same is true inall other countries that have legal systemssimilar to our own. Further, and impor-tantly, any judicial system must relyultimately on the personal integrity of theJudges who serve in it and the traditions ofthe offices they hold. The legislationproceeds on the reasonable basis thatsomeone who has held office as a tenuredJudge will be sufficiently inculcated withindependence to withstand the tempta-tions associated with the Acting Judgesystem. Indeed, those who have heldjudicial office are likely to react withincredulity and indignation at any sugges-tion that a Judge would allowconsiderations of fear or favour to influ-ence a judicial decision.’

On the interpretation of the Act, the Courtheld that re-appointment was permitted, andrejected the argument as to ‘non-sitting judicialfunctions’ as baseless. Given the lack of fullargument and the effect of decisions on otheraspects of the appeal not noted here, the Court

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LAW REPORTSR v TE KAHU

NEW ZEALAND COURT OF APPEAL

William Young, Chambers and O’Regan JJ, 28 September 2005

Powers of a Chief Judge – judge’s ‘professionalallowance’ – attendance at conference abroad

Under the relevant Alberta legislation, aProvincial Court judge is entitled to a profes-sional allowance each year to be used forprescribed purposes ‘as authorized by theChief Judge’. The purposes are (a) the atten-dance at relevant conferences and seminarsthat are related to the carrying out of the dutiesand functions of a Provincial Court Judge; (b)the buying of books and journals that arerelated to the carrying out of the duties andfunctions of a Provincial Court Judge; (c) themaintenance of memberships in judicial andprofessional organizations; and (d) thepurchase of security systems for a ProvincialCourt Judge’s home and the monthly servicecharges for those systems.

The applicant, Judge Reilly, asked the ChiefJudge for approval of the use of his profes-sional allowance to attend a conference inCaux, Switzerland organized by the Moral Re-Armament Movement. The particular sessionJudge Reilly wished to attend was entitled‘Peace-Building Initiatives’ which Judge Reillyconsidered relevant to the matters concerningthe indigenous peoples of Canada. The ChiefJudge refused approval, characterizing thesession as a political philosophy seminar, andasserting that nothing in the conference wasconcerned with the administration of justice.Judge Reilly sought judicial review of the ChiefJudge’s decision.

RAWLINS J considered two issues: whetherthe Chief Judge’s decision impinged uponJudge Reilly’s judicial independence; and

whether the decision was within the authorityof the Chief Judge.

Having reviewed the Canadian cases onjudicial independence, Rawlins J rejected JudgeReilly’s argument that the purpose of theprofessional allowance was the improvementof individual judges’ skills and knowledge asjudges and that, therefore, the professionalallowance was essentially adjudicative innature, rather than administrative. It was notthe case that allowing any oversight over theuse of the professional allowance wouldconstitute an interference with a judge’sadjudicative function.

The Supreme Court of Canada had made itclear that not all matters which affect or are ofimportance to judges are matters touchingupon judicial independence Specifically, theSupreme Court has said that not all mattersthat have or may have a financial impact onjudges are matters going to their financialsecurity; and that control by the executivebranch over certain discretionary benefits didnot constitute an attack on judicial independ-ence. Here approval of professional allowanceexpenses was in the hands of the judiciary,rather than the executive.

The primary purpose of the professionalallowance was not to confer a financial benefiton individual judges, but to ensure that thepublic received the benefit of a well-educatedjudiciary. This could be so only if the resourcesallocated were put to their proper purpose.This required an objective, rather than subjec-tive, assessment of proposed uses of theprofessional allowance.

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declared itself reluctant to express a concludedview on the question whether the appointmentof Acting Judges under s 11A of the JudicatureAct was consistent with the concept of judicialindependence implicit in s 25(a) of the NewZealand Bill of Rights Act. For similar reasons,the Court was not inclined to enter into the

question whether it should grant a declaration

that the current systems associated with

appointment and/or use of Acting Judges was

incompatible with the New Zealand Bill of

Rights Act: the evidence was not adequate to

enable this question to be fairly assessed.

REILLY v ALBERTA (PROVINCIAL COURT, CHIEFJUDGE)

ALBERTA COURT OF QUEEN’S BENCH

Rawlins J, 24 May 2006

Judges’ remuneration – deputy judges paid ona daily rate – entitlement to an independentprocess for fixing judicial remuneration

Deputy judges of the Ontario Small ClaimsCourt hold part-time appointments for arenewable three-year term. They are paid on aper diem basis, the rate being fixed by theLieutenant Governor in Council. It hadremained unchanged since 1982. The OntarioDeputy Judges’ Association sought an orderrequiring the provincial government to estab-lish an independent commission to determinetheir compensation. At first instance, the judgeheld that the current rate of remuneration fellbelow a minimum acceptable standard andthat an independent commission was required

to protect the financial security of the deputyjudges.

THE COURT held that the current Order-in-Council process for fixing the remuneration ofdeputy judges did not pass constitutionalmuster. An independent body was required, asdeputy judges were entitled to an independent,objective, effective process for determiningtheir judicial remuneration. The Court reliedon the Canadian Supreme Court’s decision inR v Valente [1985] 2 S.C.R. 673, where thatcourt asserted that financial security was anessential part of judicial independence and saidthat ‘the essence of [financial] security is thatthe right to salary and pension should be estab-lished by law and not be subject to arbitrary

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On the second issue, Rawlins J noted thatdefining the role of the Chief Judge requiredachieving a delicate balance so as to give therole meaning without infringing upon thejudicial independence of individual judges. Hecited a number of articles in which differingopinions were expressed as to how the balanceshould be struck. Under the Provincial CourtAct of Alberta, the Chief Judge had ‘the powerand duty to supervise the judges in theperformance of their duties’, with a non-exclu-sive list of powers which did not makereference to the judges’ professionalallowances. In a previous case involving JudgeReilly, it had been held that ‘while a chief judgecan exercise his administrative independence(or exercise the Provincial Court’s administra-tive independence) to a degree, a chief judgecannot interfere with a judge’s individualadjudicative independence, or be perceived tointerfere with that judge’s individual adjudica-tive independence.’

However, the decision in this case did nottouch Judge Reilly’s adjudicative independ-ence; it did not infringe Judge Reilly’s judicialindependence and was within the Chief Judge’sauthority.

Rawlins J recognized that Judge Reilly’sinterest in the administration of justice toaboriginal peoples was both important andsincere. The Provincial Court, as the court offirst instance for many litigants, had taken onan expanded, problem-solving role, particu-larly with unrepresented and aboriginallitigants. But the Caux Conference was of sucha general nature that it failed to meet thestandard of learning needed to enhance eventhe expanded role now played by theProvincial Court. He recognized that judgesshould not be restricted to conferences andseminars held in Canada:

‘There are many offshore judicial legalconferences which are of tremendouseducational benefit. Contact with ourjudicial colleagues in other parts of theworld provides a broader perspective forthe bench and can be very beneficial to alllevels of the judiciary. Even so, it is reason-able to measure the educational value ofsuch offshore experiences against someobjective criteria.’

Judge Reilly’s application was dismissed.

ONTARIO DEPUTY JUDGES’ ASSOCIATION vONTARIO

ONTARIO COURT OF APPEAL

Moldaver, Simmons and Lang JJ.A., 25 May 2006

Acting judges – validity of their appointment

Legislation in New South Wales permits theappointment of Acting Judges in the SupremeCourt for a period not exceeding 12 months.Litigation between the parties involvingalleged breaches of the law relating to financialservices was begun in that court and judgmentwas given by Foster AJ. When the case eventu-ally reached the High Court of Australia, theappellants took the point that the appointmentof Foster AJ was invalid. He had served untilthe age of 70 as a judge of the Federal Court ofAustralia and from then until age 75 servedfive successive terms as an Acting Judge in theNSW Supreme Court.

GLEESON CJ set out some agreed statistics.As at 31 December 2001, there were 45permanent Judges (including Judges of Appeal)

of the Supreme Court of New South Wales.During the preceding calendar year 20 persons(all of whom were retired Judges of either theFederal Court or the Supreme Court, orserving Judges of the District Court) had beenappointed as acting Judges or Judges of Appealfor specified terms. Some of those terms werefor a year; others were for shorter periods,typically three months. None of the personsappointed as acting Judges were practisingbarristers. He observed:

‘In a perfect world, an ExecutiveGovernment would appoint exactly thenumber of permanent judges required toenable all courts to operate efficiently andeffectively, all courts would have consis-tent and predictable caseloads, therewould be no temporary shortages of

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interference by the executive in a manner thatcould affect judicial independence’.

In the instant case, individual independencewas not the primary issue, given that mostdeputy judges sat on a part-time basis so thattheir judicial remuneration was not theirprimary source of income. The institutionaldimension of judicial independence was,however, critical to the case. Fundamental tothe separation of powers was the depoliticiza-tion of the relationship between the legislativeand executive branches on the one hand andthe judicial branch on the other. When thegovernment failed completely to addressjudicial remuneration, the entire process was indanger of becoming highly politicized. Such adanger became manifest in this case when agroup of Toronto deputy judges withdrew theirservices for a one month period in 2005. Thiswithdrawal illustrated how the lack of anindependent remuneration process couldpoliticize the issue of financial security andwhy depoliticization of judicial remunerationwas essential to the maintenance of the separa-tion of powers. The existing Order-in-Councilprocess provided no separation whatsoever

between the remuneration of deputy judgesand the political process. Rather, the processwas purely political; it was a governmentprocess, not one independent of government.Further, the process was not objective becausethe government had a direct political interest inthe outcome. This lack of objectivity wasevidenced by the government’s refusal toprovide any rationale for the freeze in thedeputy judges’ judicial remuneration, otherthan to say that the issue was one for thegovernment alone to decide. Finally, theprocess could hardly be said to be effectivewhen there had been no determination ofwhether the 24-year old per diem rateremained appropriate.

The Court allowed the appeal in part, however,so as to leave the details of the new process tobe determined by the government subject tothe caveat that the process chosen must meetthe criteria of being independent, effective andobjective. It also set aside as unnecessary thefinding of the judge below that the currentsalaries of the deputy judges fell below aconstitutionally acceptable minimum level.

FORGE v AUSTRALIAN SECURITIES ANDINVESTMENTS COMMISSION

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, 5 September 2006.

resources, there would be no need fordelay reduction programmes, and the sizeof courts would expand to meet litigiousdemand. … No such world exists.

The appointment of acting judges, supple-menting permanent judicial resources, hasbeen an aspect of the administration ofjustice in New South Wales, and in otherparts of Australia, from the beginning.Until fairly recently, most acting judgeswere practising barristers who agreed toaccept judicial appointment for a limitedterm. Sometimes, Judges of a lower courtwere appointed, temporarily, to a highercourt. There are two main reasonsadvanced in opposition to appointmentsof the first kind. First, barristers who areappointed as acting judges are said to lackthe necessary appearance of impartiality,especially if they are hoping for permanentappointment. Secondly, governments maybe tempted to make acting appointmentsin order to avoid their responsibility toprovide an adequately resourced, perma-nent, full-time judiciary. Depending oncircumstances, there may be substance insuch concerns.’

The Chief Justice referred to the PrivyCouncil’s decision in Kearney v HM Advocate2006 SC (PC) 1 which held that the Scottishsystem of appointing practising advocates astemporary judges was consistent with therequirement of the European Convention onHuman Rights for ‘an independent and impar-tial tribunal established by law’.

The appellants argued that to comply withChapter III of the Australian Constitution,State Supreme Courts must continue to answerthe description of ‘courts’. In Gleeson CJ’sview, State legislation which empowers theGovernor of a State to appoint acting judges toa State Supreme Court did not, on that accountalone, deprive the body of the character of acourt, or of the capacity to satisfy theminimum requirements of judicial independ-ence. Minimum standards of judicialindependence were not developed in a vacuum.They took account of considerations of history,and of the exigencies of government. Judicialindependence and impartiality is secured by acombination of institutional arrangements andsafeguards. Acting Judges of the SupremeCourt of New South Wales were appointed by

the same authority as appoints permanentJudges; they took the same judicial oath; theymight be removed only by the Governor on anaddress of both Houses of Parliament; andtheir remuneration was fixed by anindependent tribunal. He quoted withapproval a submission by the Attorney-General of Queensland that, ultimately, whatstands between any judge and the temptationof executive preferment is personal character.

The challenge to the validity of the NSW legis-lation, and thus to the appointments of FosterAJ, failed.

In the course of a judgment reaching the sameconclusion, GIMMOW, HAYNE ANDCRENNAN JJ addressed the question ofcourts of summary jurisdiction

‘History reveals that judicial independenceand impartiality may be ensured by anumber of different mechanisms, not all ofwhich are seen, or need to be seen, to beapplied to every kind of court. The devel-opment of different rules for courts ofrecord from those applying to inferiorcourts in respect of judicial immunity andin respect of collateral attack upon judicialdecisions shows this to be so. Theindependence and impartiality of inferiorcourts, particularly the courts of summaryjurisdiction, was for many years sought tobe achieved and enforced chiefly by theavailability and application of theSupreme Court’s supervisory and appellatejurisdictions and the application of theapprehension of bias principle in partic-ular cases. But by contrast, theindependence and impartiality of a StateSupreme Court cannot be, or at leastcannot so readily be, achieved or enforcedin that way. Rather, the chief institutionalmechanism for achieving those ends, in thecase of the Supreme Courts, has been theapplication of Act of Settlement terms ofappointment to the Court’s judges coupledwith rules like the rules about judicialimmunity mentioned earlier in thesereasons.

That different mechanisms for ensuringindependence and impartiality areengaged in respect of inferior courts fromthose that are engaged in respect of StateSupreme Courts is, no doubt, a product ofhistory: not least the historical fact that

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Judicial independence – tribunals – unwrittenConstitutional principle applicable to tribunalmembers when tribunal exercises functionsequivalent to those of a court

The petitioner served as an arbitrator in theBritish Columbia Residential Tenancy Office.She had served for 11 years and had anunblemished record. A new Director acted toimplement changes which would limit thenumber of cases the petitioner could handle,the effect of which would be to reduce herincome by one-third. When she made repre-sentations against the changes, herappointment was terminated under the PublicSector Employers Act, some one year into afive-year term. No reasons were given for thedecision nor for its subsequent confirmationafter a flawed reconsideration process carriedout without sight of the documents. Underpressure, the Ministry referred to thepetitioner’s allegedly inappropriate objectionto the new policies.

McEWAN J, in stating the facts, observed thatit was manifest that the petitioner was termi-nated simply for having the temerity to stand

up for herself. The respondents had concededthat there was procedural unfairness and thatthe dismissal must be quashed on that ground.Having dealt with an issue as to the interpreta-tion of the legislation under which thedismissal was effected, McEwan J addressedthe underlying constitutional issue.

The petitioner submitted that there areunwritten constitutional imperatives whichinclude the rule of law, and that judicialindependence was integral to the rule of law;that because residential tenancy arbitrators fallat the ‘high end’ of the spectrum of adminis-trative tribunals, their function within thoseprinciples required that they be independent;and that it followed that if the relevant legisla-tion was interpreted to mean that members ofsuch tribunals might be subject to arbitrarydismissal, it was unconstitutional as inimical tothe unwritten constitutional principle ofjudicial independence, which was an essentialincident of the rule of law.

McEwan J referred to Canadian authorities onjudicial independence, Reference reRemuneration of Judges of the Provincial

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the inferior courts of England were oftenconstituted by persons who were notlawyers or, if legally trained, held nopermanent full-time appointment to office.But the differences that may be observedas a matter of history between, on the onehand, the inferior courts in Australia andtheir English forbears and, on the other,the colonial, and later State, SupremeCourts, do not deny the central impor-tance of the characteristics of real andperceived independence and impartialityin defining what is a ‘court’ within themeaning of the relevant provisions ofChapter III.’

KIRBY J dissented. In his view, the numberand type of acting appointments made in NSWwere such as to amount to an impermissibleattempt to alter the character of the Supreme

Court. What was intended as a statutory provi-sion for occasional and exceptional additionsto judicial numbers, in special circumstances,had become a means for an institutionalarrangement that was incompatible with therole of the State courts, particularly theSupreme Court. It had made the courtsbeholden to the Executive for regular short-term reappointments of core numbers of thejudiciary. This was offensive to basic constitu-tional principle. The time had come for theHigh Court to draw a line and to forbid thepractice that has emerged in New South Wales,for it was inimical to true judicial independ-ence and impartiality.

CALLINAN J agreed with the majorityjudgments, as did HEYDON J, who gave adetailed account of the history of the use ofActing Judges in Australia.

MCKENZIE v BRITISH COLUMBIA (MINISTER OFPUBLIC SAFETY AND SOLICITOR GENERAL)

IN THE SUPREME COURT OF BRITISH COLUMBIA

McEwan J, 8 September 2006

Court of Prince Edward Island [1997] 3 S.C.R.3; and Ocean Port Hotel v. British Columbia(Liquor Control, General Manager) (1999)174 D.L.R. (4th) 498. In the latter, theSupreme Court of Canada held that, in theabsence of constitutional constraints, thedegree of independence required of a particulargovernment decision maker or tribunal isdetermined by its enabling statute. This wasthe basis for the respondents’ argument in thepresent case that legislatures are onlyconstrained by the rule of law (within theboundaries of the constitution) in the sensethat they must clearly comply with legislatedrequirements as to manner and form. Thepetitioner referred to two later decisions, BellCanada v. Canadian Telephone EmployeesAssn. [2003] 1 S.C.R. 884 and Ell v. Alberta[2003] 1 S.C.R. 857. Bell Canada concernedthe Canadian Human Rights Tribunal whichoperated very much as a court. Ell dealt withsome Alberta justices of the peace: the SupremeCourt held that the principle of judicialindependence applied to the position of justicesof the peace. Justices were required to beindependent because they exercised judicialfunctions related to the basis upon which theprinciple was founded.

McEwan J expressed the view that the correctanalysis lay in taking a functional approachrather than in sifting and parsing the words ofvarious judgments for some residue ofauthority for what was, in fact, a fairlystraightforward proposition.

‘This brings the discussion around to thesort of functions that may be performedinterchangeably by courts or tribunals. Aswe have seen, it is certainly within thecompetence and discretion of legislaturesto transfer some realms of decision

making from the courts to tribunals betteradapted to address limited jurisdictions. Itsometimes happens that such decision-making is moved back and forth. We haveseen that in 1984 the return of the residen-tial tenancy arbitrators’ jurisdiction to thecourts was contemplated. A recentexample in British Columbia is thewinding up of the ExpropriationCompensation Board and the reversion ofits jurisdiction to the Supreme Court.

The Respondents’ position is quite simplythat when government removes an area ofadjudicative jurisdiction from the courts itis liberated to constitute the tribunal inany manner it sees fit. As we have seen,this means, in the case of residentialtenancy arbitrators, that it considers itsresponsibility to the public discharged bythe assignment of arbitrators who may beterminated at any time simply for gettingon the nerves of Ministry functionaries. Itshould not be forgotten that these arbitra-tors are sometimes called upon toadjudicate as between the government andits own tenants….

A tribunal, constituted to try issues of lawas between private citizens that isequipped with none of the indicia ofindependence required to ensure impar-tiality or to engender public confidence orrespect, must necessarily run afoul of theunwritten principle of independence. Thework of residential tenancy arbitrators is ajudicial function that “relates to the basison which [that] principle is founded.’

The dismissal and reconsideration decisionwere set aside, and declarations made assought by the petitioner.

46

This book offers a functional guide to corrup-tion law and its evolution in the UK and ananalysis of international agreements andperspectives, stressing both the similaritiesbetween different domestic jurisdictions andalso the international nature of moderncorruption. As the authors comment, ‘whereasin the United Kingdom at least, corruption hadbeen regarded as relating solely to what iscommonly called bribery, it was regarded inter-nationally as including other offences such asmisuse of public office, embezzlement, andmisappropriation of state assets’ (pp 4-5). Theauthors show that the word ‘corruption’ isderived from the Latin word corruptusmeaning broken. Its derivation emphasizes thedestructive effect of corruption on the fabric ofsociety and the fact that its popular meaningencompasses all those situations where agentsand public officers break the confidenceentrusted to them.

Chapters 2 to 5 examine the development andcurrent state of corruption laws in the UKfrom the Public Bodies Corrupt Practices Act1889 and the Prevention of Corruption Act1906 to the most recent amendments made inPart 12 of the Anti-Terrorism, Crime andSecurity Act of 2001, but they have somerelevance in Commonwealth jurisdictionsfacing similar issues.

One of the largest tasks faced in the UK wasthe definition of ‘public office’, and the issue ofwhere parliamentarians were to be treated.The special privileges of parliamentariansbrought their own set of issues. Even thoughparliament is protected from the law in manyinstances, often to shelter it from undueoutside influence, clearly parliament does notpossess the ability to investigate allegations ofcorruption as thoroughly and efficiently as lawenforcement bodies. The authors use theNolan Committee and the Salmon report asexamples of the evolution of corruption lawsin regard to this issue, and how eventually,MPs and ministers were subjected to corrup-tion laws like all other public officials.

Another interesting debate presented by theauthors involves the presumption of guiltfound in UK law in instances of bribery, andhow this has been challenged and amendedunder international and regional pressures.Under the statutory offence of bribery in theUK, the presumption of the law is that thegiving of some sort of undue advantage, influ-ence, or gift is in fact a corrupt act, with theburden of proof that it was in fact innocentlymade resting on the defendant. This in manyways contravenes the European Convention onHuman Rights Convention and the LawCommission has recommended its abolition. Itis an example not only on the UK’s uniquenessin the area, but also of how international influ-ence has challenged and changed UKcorruption law, a major theme of the book.

Chapters 6 and 7 look at civil remedies againstcorruption, examining civil procedures for theprocurement, recovery of losses suffered byvictims of corruption, and the rules regardingwho may be a claimant. Recovery mechanismscan be quite difficult to utilize, given that theillegally procured property is often outside ofthe jurisdiction within which the actualcorruption took place, such as a Swiss bankaccount or a piece of property abroad.Nevertheless, Chapter 7 serves as an excellentbasis for understanding how and whencountries can and do offer mutual legal assis-tance, and more specifically, the proceduresrelating to the UK’s involvement in civil recov-eries abroad.

Chapter 8, ‘The Regulation of Conduct inPublic Life’, deals with the prevention ofcorruption and includes discussion of theconduct of the legislature, the executive, thecivil service, local government bodies, and thejudiciary. In the UK these norms are derivednot only from the investigations and reportssuch as the Law Commission’s Report in thelate 90s and the recommendations made by theCommittee on Standards in Public Life, butalso from international initiatives such as theBangalore Principles of Judicial Conduct andthe Limassol Conclusions. Those efforts also

47

BOOK REVIEW

Corruption and Misuse of Public Office by Colin Nicholls QC, Tim Daniel, Martin Polaine,John Hatchard (Oxford University Press, 2006) £135.00

have implications from a Commonwealthperspective, as many of the conventionsparallel the fundamental values contained inthe Commonwealth (Latimer House)Principles on the Accountability of and theRelationship between the Three Branches ofGovernment.

The final three chapters offer explanation andanalysis of the major international instrumentsin the fight against corruption. Starting withthe UN Convention against Corruption, thebook then narrows the focus down to regionalefforts referencing European, African, andInter-American efforts of eradication andprosecution. Chapter 10 has a detailed study ofthe OECD Convention on Combating Briberyof Foreign Public Officials in InternationalBusiness Transactions. A specific example isthe Lesotho Highlands Water Project, whichsuffered massive setbacks due to bribes beingpaid by construction companies to the project’scommittee in order to secure buildingcontracts. The case offers insights into thejurisdictional debates that occur when multi-national companies bribe abroad. The caseinvolved the parties exchanging reward and

influence through international financialchannels (Swiss bank accounts), bringing boththe financial and technological elements ofmodern corruption to light. Finally, the casewas tried in Lesotho, proving that the ThirdWorld was dedicated to the cause of fightingcorruption in addition to being able to mounta successful prosecution.

Chapter 11 offers brief comparison of othernational corruption laws, and chapter 12 looksat civil society’s role in eradicating corruption,and the work of Transparency Internationaland Social Accountability International.

For those dealing with corruption cases aslawyers or judicial officers in the Common-wealth, this book is an essential study of howcorruption laws work in the UK and therelevance of international agreements andregulations. Where a lawyer or judicial officermay need to examine a case regarding an inter-national agreement, more research wouldcertainly be required, but the appendices havecomplete copies of the different agreementsmaking it a valuable collection of documents.

Brett Levin, CMJA

48

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