Magistracy In Crisis?

Constitutional Reform Commission Report.

THE Constitutional Reform Commission says there is a widespread perception in St Lucia that the Magistracy is in crisis, but it did not agree with a suggestion that the Constitution should be amended to permit responsibility for management of the Magistracy to vest solely with the elected government of the day.

Today we continue serializing the Commission’s report with a look at Chapter 10 which looks at THE JUDICIARY:

In the aftermath of the Marlborough House Conference in 1978, the declassified summary on what was agreed for the Judicial Provisions reveals as follows:

“9. Judicial Provisions – Like the other former Associated States which have become independent, St. Lucia will retain its connection with the West Indies Associated States Supreme Court. In St. Lucia the court will be known as the Eastern Caribbean Supreme Court. The Court consists of a Court of Appeal and a High Court. The Judicial Committee of the Privy Council remains the final court of appeal.”

These arrangements have remained in place since independence.

As directed by the Statutory Instrument (S.I). that established it, the Commission inquired into potential reforms aimed at “maintaining and strengthening the independence of the Judiciary at all levels.” The Commission considered the various Constitutional provisions relating to the Judiciary. It took note of Section 91 of the Constitution which governed the appointment of Magistrates and Legal Officers of the State. It reviewed the provisions relating to the High Court and Court of Appeal of Saint Lucia, and of the provisions specially preserving appeals to the Privy Council as Saint Lucia’s final court of appeal, among others. The Commission also considered and reviewed the Supreme Court Order, which established the Eastern Caribbean Supreme Court, of which Saint Lucia is a part.

Based on an examination of these provisions, and of the Constitution as a whole, the Commission took note of the special position of the Judiciary as the third arm of government. It noted, for example, that the various rules governing the appointment and discipline of judges, as well as the structure of the Court, were all aimed at creating an independent institution, capable of serving as a bulwark against the erosion of rights enjoyed by citizens. The Commission was especially cognisant of a number of decisions by the Eastern Caribbean Supreme Court, which pronounced upon Executive action in Saint Lucia. It noted that in a number of instances, the Court was required to and did issue decisions, which declared laws passed by Parliament unconstitutional, or decisions taken by Cabinet, illegal. The Commission therefore recognised that the Judiciary played a key role in serving as a check and balance against both governmental and parliamentary overreach, and that its role required it to be in occasional divergence with both institutions. It acknowledged that by dint of this fact, the Judiciary occupied a special and privileged position in the Constitutional framework.

The Commission considered the various issues surrounding potential reform of the Judiciary. It determined that any reforms proposed should only strengthen and not weaken the special position enjoyed by the Judiciary. In that regard, the Commission understood the direction contained in the S.I. to require an examination of the Judiciary at three levels, namely; the magistracy, the Eastern Caribbean Supreme Court, and the Privy Council. It concluded that the issues related to each level were distinct and required separate consideration.

The Magistracy

The Commission considered a number of submissions that suggested there was a crisis in the magistracy. It noted that persons commenting on the magistracy emphasized the critical role played by the magistracy in dispensing justice in Saint Lucia. The Commission’s attention was drawn to the fact that a very high percentage of all criminal cases were heard and dispensed with in the Magistrates’ courts, as well as a significant number of civil matters. For some persons, corruption or incompetence in the magistracy contributed significantly to the inefficiencies and ineffectiveness of the existing criminal justice system.

In the view of those making the submissions, the problem with the magistracy was located in our Constitution. It was argued before the Commission that the fundamental problem was an issue of accountability. The Commission’s attention was drawn to the fact that, while responsibility for discipline and removal of magistrates vested solely in the Judicial and Legal Services Commission, (JLSC,) actual day to day management of the operations of magistrates fell under the purview of the Minister of Justice. In other words, it was suggested that the Constitution was unclear as to which authority was ultimately responsible for management of the lower Judiciary. It was also argued that our Constitution did not sufficiently clarify the roles and functions of the lower Judiciary. At the same time, it was noted that the public held the government responsible for the performance or apparent lack thereof, of the Magistracy. It was also suggested that, by virtue of the itinerant nature of the JLSC, and the lack of dedicated human and other resources to monitor performance, that body was ill-equipped to assume the role of monitoring and managing the performance of magistrates in Saint Lucia.

Accordingly, and to permit the appropriate Minister of Justice to have authority to appoint and discipline non-performing, ineffective, or corrupt magistrates.

The Commission considered the submissions with respect to the Magistracy at length. It conceded that there was a widespread perception that the magistracy was in crisis. It acknowledged that there was an apparent ambiguity in the operational accountability of the Magistracy and agreed with the proposition that the magistracy was critical to an effective criminal justice system and that the vast majority of criminal matters came before and were dispensed with, in magistrates’ courts. It recognized a potential weakness in terms of how the JLSC was currently set up to manage the lower Judiciary. It therefore agreed that the Magistracy was an area requiring urgent Constitutional reform.

Notwithstanding, the Commission did not agree that the responsibility for appointment and discipline of the Magistracy should rest solely with a Minister of Justice or Cabinet. The Commission regarded this proposal as likely to undermine the effectiveness and independence of the lower judiciary, rather than to strengthen it. It recalled the critical role played by the Judiciary in protecting the rights of citizens. It considered the privileged position of the higher courts, and noted the relative high effectiveness of judges at High Court and Court of Appeal levels. The Commission regarded this effectiveness as a function of two major factors:- firstly the independence and security of tenure afforded to judges at those levels, and secondly the adequacy of the financial resources dedicated to the operations of those institutions.

The Commission was concerned that, without the security of tenure of the “upper” judiciary, and without the dedicated resources required to properly discharge their functions, magistrates might become a hostage of a corrupt government, seeking to influence criminal cases based on narrow, political considerations. By handing responsibility for the magistracy over to the Cabinet, the Commission believed a door would be opened for a dangerous encroachment of the Executive into the Judicial arena. Accordingly, rather than improving the effectiveness and accountability of the magistracy as some submissions contended, the Commission was fearful that political considerations might influence the dispensation of justice in magistrates’ courts, should the magistracy be removed from the control of the JLSC.

The Commission also considered regional trends and took notice of the regional discussions on the Magistracy in the last few years. It noted that the general trend in the region in terms of potential reform of the Magistracy, appeared to advocate the assumption of responsibility for the Magistracy by the Chief Justice and the “upper” Judiciary. It noted that several regional academics and statements by a number of regional governments, strongly advocated for the creation of a “regional Magistracy,” drawn from across the sub-region, in order to help promote and increase its effectiveness.

For that reason also, the removal of the Magistracy from the control of the JLSC, ran counter to recent regional trends and developments in terms of the reform of the Magistracy. The Commission therefore firmly rejected the submissions in this regard.

However, the Commission felt it was necessary to urge some reforms of the Magistracy, since it regarded the status quo as unsatisfactory. Contrary to the suggestion by some who made submissions before it, the Commission believed that further strengthening the capacity of the JLSC to monitor and manage the day-to-day operations of the Magistracy, was the most appropriate method of improving the quality of justice dispensed in the lower Courts. The Commission regarded the problems with the Magistracy as essentially a management issue, and believed that adequate allocation of resources, coupled with the creation of appropriate institutions within the JLSC, should significantly strengthen the performance and accountability of the Magistracy in Saint Lucia.

Further, the Commission also believed that, in light of the need to strengthen the Magistracy and to afford it the independence enjoyed by judges at High Court and Court of Appeal levels, it was necessary to bring the Magistracy fully under the purview of the Chief Justice. In that regard, the Commission was of the view that the Magistracy should be made a full part of the Judiciary, and that the current constitutional arrangement, in which responsibility for management and supervision of the Magistracy is shared between the JLSC and the Minister responsible for Justice, should be terminated. In the Commission’s view, what was required to improve the quality of service dispensed in the lower courts, was an elevation of the Magistracy, so that it could benefit from the improved training, independence, mobility and remuneration of the “upper” Judiciary. In short, the Commission determined that the privileges enjoyed by judges of the High Court and Court of Appeal should be extended to the Magistracy in full.

The Commission was therefore convinced that, by firmly clarifying the responsibility for the management and supervision of the Magistracy in the Constitution and by bringing the magistracy exclusively under the purview of the JLSC and Eastern Caribbean Supreme Court, the concerns expressed by citizens about the effectiveness and integrity of the magistracy, would be reduced over time.

With respect to the Magistracy, the Commission recommends the following:
(150) It should be brought fully under the control and management of the Judicial and Legal
Services Commission.
(151) An appropriate mechanism should be created within the Eastern Caribbean Supreme Court and the JLSC to monitor and manage the day to day operations of the magistracy in Saint Lucia.
(152) There should be an elevation of the magistracy so that it could benefit from improved training, independence, mobility and remuneration of the “upper” judiciary.

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