Chief Justice Hon. Anthony Smellie gave a passionate speech at the UCCI conference last Thursday (22) when he warned of emerging threats to the independence of the regional judiciary.

He said there was a trend towards extra-judicial bodies overseeing judges, such as Cayman’s Judicial Legal Services Commission (JLSC), had the potential to encroach on their autonomy and to have a negative influence on their impartiality. In a presentation that emphasised the importance of an independent judiciary to modern democracies, Smellie warned against complacency as he pointed to other encroachments, including the removal of the local legal aid budget under the edict of ‘nation building’ here in Cayman.

“There is an immediate and apparent danger which was a new kind of judicial control that had the potential to intrude upon judicial insularity from external influences,” he said and pointed to Cayman’s own JLSC, which he said was “in the midst of trying to unravel the Gordian knot” of disciplinary control of judges.

“If the disciplinary regime is to be imposed from outside, the public was likely to question the ability of judges to remain impartial if it were to have a legal case regarding the external regulator,” he added. “The judiciary already has more oversight and checks and balances, because of the appellant system, than any other public office.  Judges sit in the open glare of public scrutiny – scrutiny by the immediate parties involved and by the media on behalf of the public. “It is no doubt also due to the fact that judges are amenable to having their decisions immediately reviewed by way of appeal.”

Smellie questioned, “if the trend of disciplinary control of judges was likely to be for the public good when it was weighed against the dangers to judicial independence and there are already dissenting voices in other jurisdictions. There are extraordinary dangers in small jurisdictions of the erosion of impartiality since it could invite dissatisfied litigants to harass judges who rule against them. And while the authorities may dismiss complaints based only on the merits of a decision, a review would still be required which may incline a judge to avoid rendering controversial decisions while the investigation ran its course. Any disciplinary system that allows or encourages interested parties to strike out at judges is too great an interference with judicial impartiality to be tolerable under the doctrine of separation of powers.”

The Chief Justice also warned of the fundamental importance of an independent judiciary to uphold the law, the people’s rights and to facilitate business and economic stability. “An independent judiciary is able to ensure that powerful individuals must conform to the law,” he said. “No one is either above or below the law.”

He pointed to the budget constraints that the judiciary faced around the region saying, “While Cayman is luckier than some jurisdictions where judges had to go to judicial ministers for approval of every penny they spent, its vulnerability to political control was illustrated by the recent diversion of the entire legal aid budget away from the courts by way of ministerial edict for nation building purposes”.

Smellie was making reference to the move by the premier during the budget process in October 2009 in which he took control of the legal aid budget under his ministry. Mr. Bush had said the courts should not be spending money on expensive lawyers ‘to get criminals off the hook’ but the Chief Justice pointed out that: “the delivery of legal aid is an essential part of that since most criminal defendants cannot afford to pay their own lawyers.”

Although the money for legal aid has “since been restored to the status quo ante” Smellie warned, “the episode certainly gave the impression that the political directorate did not regard the administration of justice as an important priority and did not understand the need for institutional independence of the judiciary as a vital aspect of its ability to administer justice.”

Although Commissioner David Baines remarked that the acquittal of Devon Anglin “was a desperate day for justice for the Cayman Islands” I am very proud of our Justice system here. In fact that decision, although unpopular, reinforced my opinion. I quote from our most respected member of our legal profession, Ramon Alberga QC who said Mr. Baines remarks were unwarranted and inappropriate. Alberga in a letter to iNews Cayman said that a review of Justice Howard Cooke’s judgment reveals that he understood the issues and applied the proper principles and was obliged as a matter of law to acquit the defendant. Had he not, Alberga says, then it would have been a “desperate day for justice in the Cayman Islands”.

I applaud Chief Justice Anthony Smellie’s speech and I hope the appropriate people take note.