Age limit increased, disciplinary control vested in CJ, Court of Appeal President
Chief Justice Anthony Smellie QC says new changes increasing the age limit for serving judges to 70 years and removing disciplinary control from the Governor’s Office has put Cayman in line with “modern, international Commonwealth democratic norms.”
This as Mr Smellie welcomed the gazetting, on Friday (12 August,) of the Constitutional Order that paves the way for increasing the tenure of judges and vesting disciplinary control of judges of the Grand Court and magistrates and judges of the Court of Appeal to the Chief Justice and the Court of Appeal President respectively.
“Our Constitution is once again fully in line with the modern international and Commonwealth democratic norms, in ensuring that the judges’ security of tenure to retirement and freedom from external control are expressly recognised and protected. These amendments are the result of careful deliberations between the Governor, the Premier (on behalf of the Cabinet with the advice of the Attorney General) and the Chief Justice and followed upon consultation with the Leader of the Opposition and the Independent members of the Legislative Assembly,” Mr Smellie said on Monday (15 August) as he responded to queries from The Cayman Reporter on the new changes.
He also pointed out that consultation was carried through the Parliamentary and Privy Council processes in the U.K, with the support of the Secretary of State for Foreign Affairs.”
Mr Smellie, in his response explained that the purpose of the constitutional amendment “is to restore the important principles of separation of powers, judicial independence and security of tenure — principles that are at the foundation of our democratic system of government.”
The amendment to section 96, he explained, does this by setting a single retirement age of 70 for the judges which removes the uncertainty of a single retirement age.
“By having provided for a primary retirement age of 65 and a final retirement age of 70, the former provision created uncertainty over a judge’s tenure for that final five-year period because it did not explain the objective bases for extension from the earlier to the latter age,” he said.
Now, through the changes, it is clearly defined that the retirement age is 70 and this, he added, “brings our constitutional age limit in line with that which appertains in the United Kingdom.”
The Order states that “the tenure of judges of the Grand Court is extended from the age of 65 to 70. Secondly, the Governor’s power to exercise disciplinary control over the Chief Justice and the President of the Court of Appeal is removed. And thirdly, the power to exercise disciplinary control over judges of the Grand Court and magistrates and judges of the Court of Appeal is transferred to the Chief Justice and the President of the Court of Appeal respectively.”
However the Order stated that the Governor’s constitutional power to remove the Chief Justice, the President of the Court of Appeal, judges of the Grand Court, magistrates and judges of the Court of Appeal from office remains unaffected.
Mr Smellie pointed out that the amendment to section 106, which removes disciplinary control, is equally important.
“Everyone will appreciate the importance of the judiciary not only being independent in actuality but also of the judiciary appearing to be independent of control by any outside power, person or influence. Section 106, as it stood before amendment, purported to vest ongoing disciplinary control over the members of the judiciary in the office of the Governor; removal from office would remain as before – requiring an independent judicial tribunal inquiry and recommendation to the UK Privy Council,” he said.
This meant, according to the Chief Justice, is that even while judges and magistrates would be deemed to have committed no transgression which could justify their removal from office, it purported to fall to the Governor (acting on the advice of the JLSC) to impose some kind of unspecified indeterminate sanction upon them if a particular complaint was deemed by the Governor to call for such sanction.
“This potentially created the appearance of interference and was obviously a threat to all notions of judicial independence. Over time, it doubtlessly would have operated to undermine the principle of separation of powers and with it the very foundation of our constitutional system of government,” he said.
The amendment to section 106, he said, restores the balance simply by providing that the judiciary shall be responsible for disciplining itself in respect of any matter that could not justify removal from office.
“Where such more serious concerns arise, the position remains as it has always been — the tried and proven well recognised process which involves an independent judicial tribunal of inquiry making a recommendation to the Privy Council which ultimately advises Her Majesty the Queen, through the Office of the Governor, on the question of removal,” Mr Smellie added.
Last year Cayman hosted the final consultation on a model law aimed at providing Commonwealth countries with a guide on Judicial Service Commissions, their operation and the proper legislative framework needed for them to be effective in appointing and disciplining judges.
During that consultation Mr Smellie raised the issue of discipline being the responsibility of the JSC and indicated that there can be no doubt about the important responsibility of a JSC to provide an open, accountable and fair process for judicial appointments, but he was not inclined to have the power of discipline reside in the hands of JSC.
“Apart from discipline by way of the ultimate sanction of removal, it has long been established that the judges should be responsible for disciplining themselves. This is the system that still appertains in most places in the Commonwealth and has worked well, it must be assumed, because the judges have shown that they can be relied upon to govern themselves,” Mr Smellie contended at the consultation.