Former Prime Minister and constitutional law scholar Kenny Anthony delivered a wide-ranging lecture on judicial independence and accountability on May 26 at the headquarters of the Eastern Caribbean Supreme Court in Bois D’Orange.
The lecture, titled “The Court, The Constitution and The Citizen: Who Guards the Guardian?,” examined the balance between judicial independence and public accountability, while addressing concerns surrounding how judges are scrutinized within the legal system.
Anthony acknowledged that many citizens remain uneasy with the idea of judges ruling on matters involving fellow members of the judiciary.
“Put crudely, how can the courts be guardians when their judges are also entrusted with the power to adjudicate matters involving other judges, their brethren, their brothers?” he asked. “It strikes many citizens as strange that judges who commit infractions, judicial or otherwise, are answerable to the same courts that they administer and adjudicate. While some are suspicious of this judgment, others believe that this is repugnant and improper.”
Referencing the case of Maraj v The Attorney General (No. 2), Anthony noted that the Privy Council had previously addressed those concerns directly.
“It may appear to be a distasteful task,” he quoted the Privy Council as stating, “but the Constitution places the responsibility for undertaking the inquiry fairly and squarely on the High Court.”
Anthony argued that transferring disciplinary authority over judges to non-judicial bodies would undermine the principle of judicial independence.
“Obviously, if the power to determine indiscretions and breaches of the law by judges was handed to another non-judicial authority to determine, then the very concept of judicial independence would cease to have real and binding value,” he said.
“At the end of the day, the doctrine of necessity governs in the sense that ultimately the apex of decision making is reached and there is no choice but to locate the power to determine the fate of judges in other like qualified judicial personnel and authorities.”
The former prime minister also outlined safeguards that have developed within the judicial system to maintain fairness and public confidence, particularly in cases involving bias or conflicts of interest.
“There have been several cases in the Commonwealth where judges have been disqualified, where they have had a direct proprietary interest in the matter,” Anthony stated.
“Likewise, judges have had to be disqualified from hearing cases on the grounds of bias. The general rule is that it is the duty of a judge to recuse himself or herself where bias may be suspected.”
He pointed to one regional example where a retired judge was prevented from leading a commission of inquiry because of concerns regarding impartiality.
Anthony also highlighted what he described as two major developments strengthening public trust in the judiciary, particularly reforms relating to judicial review. Justice Eddy Ventose, in his book “Commonwealth Caribbean Administrative Law,” described judicial review as the process by which courts examine the actions of public bodies to ensure they are lawful and constitutional.
“Firstly, it is no longer necessary to seek the leave (permission) of the court to apply for judicial review,” he explained. “A litigant is no longer required to show that he or she has local standard to commence an action for judicial review. It is enough if a litigant demonstrates sufficient interest in the subject matter.”
According to Anthony, the reforms significantly widen public access to judicial oversight mechanisms.
“The new rule says that an application for judicial review may be made by any person, group, or body which has sufficient interest in the subject matter of the application,” he said.
“The net of persons or groups who may file applications have been widened considerably.”
Anthony added that organizations and public interest groups with relevant expertise could now more readily challenge state decisions and administrative actions.
“I expect an explosion in the years ahead,” he remarked.
The former prime minister argued that these changes also make the judiciary itself more accountable.
“With the widening of the net allowing claims for judicial review or applications via administrative orders, the Court has made it easier for its decisions on the appointment and discipline of judges to be challenged by citizens, groups, and bodies once the criteria in Order 56 of the Rules of Procedure is satisfied,” he explained.
“In fact, the administration of judges is now more readily amenable to be challenged and reviewed. This encourages transparency, strengthens accountability, and builds public confidence and trust.”
Anthony stressed that judges accused of wrongdoing must be treated equally before the law.
“Building trust and confidence also means that when judges commit infractions, be they civil or of a criminal nature, they must be treated in like manner to all other citizens of the state without the enjoyment of special protections or privileges extended to them by virtue of office,” he stated.
“Likewise, those who are charged with criminal or other offenses are entitled to whatever protection the law extends to accused persons, nothing more, nothing less.”
He acknowledged that such situations pose difficult tests for the judiciary but maintained that regional courts have generally upheld their responsibilities.
“This becomes a real test for our courts and judiciary,” Anthony said. “In this regard, it cannot be said that our courts have been found wanting.”