CJ’s query should be heard in CI, says UK court

(CNS): The Privy Council’s Judicial Committee has stated that a petition filed by the Cayman Islands’ chief justice in relation to constitutional questions regarding the impartiality and independence of the local judiciary should be heard in the Cayman Islands own Grand Court. In a judgment handed down Thursday, the UK’s highest court unanimously advised  that the petition should be dismissed. “It would be inappropriate for the Judicial Committee to substantively consider the two issues raised in the Petition, because those issues could be raised by way of ordinary proceedings in the Grand Court,” the judges said.

“Where such proceedings are a possibility, it would be wrong as a matter of principle, and in the absence of special factors, for the Judicial Committee to act as a court of first and last resort.”

The three judges, Lord Neuberger, Lord Hope, and Lord Mance, indicated that the 1833 act under which Chief Justice Anthony Smellie had brought the petition is intended to provide mechanism for issues which cannot be determined through ordinary judicial process. They said there were no special factors in this case that crossed “the relatively high hurdle to justify the provision of substantive answers” as both of the issues in question could be considered by the Grand Court in the normal way.

The judges found that if the chief justice brought an application locally there was no risk of the governor selecting the judge in his own cause because it would be the Lord Chief Justice of England and Wales who nominated a temporary judge to consider the application. They went on to say that there would not be any difficulties either in finding a suitable  Court of Appeal panel if the CJ went on to appeal any decision of a temporary judge heard in the local Grand Court.

“That the two issues are of high constitutional importance reinforces why the Grand Court should initially deal with them,” the three senior judges stated. “The Judicial Committee will normally wish to have regard to the views of the local court when determining constitutional issues which are brought before it from that court’s jurisdiction.”

The decision came following a petition filled by the CJ in May to the UK court seeking a decision on the powers of the Judicial and Legal Services Commission (JLSC) established under the Cayman Islands 2009 Constitution in relation to the appointment of judges past retirement age and disciplinary procedures and the general impact this has on judges’ independence. In response, the Cayman Islands governor argued that the UK court should not advise on the merits of the issues, primarily on the basis that they should be resolved in Cayman.

In the wake of the decision, the CJ explained that the aim of his petition was to bring local provisions for judicial tenure and discipline in line with standards in the United Kingdom as a means of safeguarding the independence of the judiciary.

“Great care will need to be taken as the next steps are explored,” said Chief Justice Smellie, noting that having the matter resolved before the Privy Council would have been quicker, simpler and less costly than dealing with it locally as, in the end, the matter may go back to the Privy Council on appeal.

“The Government of the Cayman Islands and the Constitution have wisely preserved the power to refer issues to the Privy Council in London making it possible to bring difficult and important issues such as these before an expert tribunal for resolution,” Cayman’s top judge said. “The need for this will always be rare but it is a very important safeguard of the Constitution of the Cayman Islands and therefore of the rights of persons appearing before the courts. I am therefore disappointed that it seems we must now first go through the protracted stages before the local courts as the Privy Council was not prepared to rule on the substance of the matters at this stage.”

He explained that the goal was to preserve the impartiality of the judiciary as the Bill of Rights now guarantees the fundamental right of every person to a hearing before an “independent and impartial” court. An important assurance of those rights, said the chief justice, is firmly and indisputably established tenure and judges must be and seen to be unconstrained by potential influences.

“We took action now to avert any possibility of any attempted rogue influences in the future, whether real or perceived,” Smellie added.

He explained that in the UK there is no discretionary renewal of appointments as all judges, full or part time, are appointed until age 70. The CJ’s concern, however, is that the Constitution Order 2009 provides for judges to remain in office only until they are 65 and after that, the Constitution declares, they may remain until 70 years, but only at the discretion of the governor based on advice from the Judicial and Legal Services Commission (JLSC).

The CJ stated that the basis upon which that discretion can be exercised is what required clarification as well as the nature and extent of the disciplinary power that may be exercised over the judges.

“The matter needs to be resolved now, before difficult cases start to come before the court requiring an interpretation of the Constitution Order and the Bill of Rights,” Chief Justice Smellie said. “Any potential for aspersions about the partiality of judges must be removed now, before it arises in other cases,” he continued. Waiting until it became an issue could bog down the court in protracted hearings that would ultimately be more costly and could bring the whole system to a halt, he added.

See full judgement below.