Introduction

Although the Commonwealth Caribbean is notable among the countries of the former British Empire for the stability of its institutions and the levels of accountability in government, like every generalization this one too is subject to exceptions.

In many, if not all of the territories, there have been occasions following political independence where constitutionalism has been threatened - sometimes dramatically as in Grenada and Guyana вЂ” but more often than not in quotidian and less obvious fashion, as newly independent governments have tested the limits of their power. Resulting tensions with educated and informed populations are most readily identifiable in litigation under the constitutional bills of rights, the outcome of which is obviously dependent on the degree to which judges are able and prepared to scrutinize both legislative and executive acts and thereby hold governments to account. The mechanisms by which judiciaries have been insulated against interference and how these actually operate in practice are therefore crucial, as they impact significantly on the ability and willingness of judges to fulfil this role, and, by extension, on the measure of constitutionalism that exists in a society.

A judiciary is, obviously, only as good as its individual members, but the general level of independence depends not only on the individual judges themselves, but also on the conditions under which they operate and the protection conferred on their offices. The latter factors have been described by Allen SJ as the вЂ?institutional dimensionвЂ™ of judicial independence, as distinct from the individual dimension which relates to the integrity of the specific judge.^[825] Both dimensions, however, are equally dependent on a number of key factors protected by Caribbean constitutions, which can be broadly categorized as (i) the procedures for selecting judges, (ii) the conditions under which the judiciary operates, and (iii) the jurisdiction of the courts themselves.

But there is a broader and somewhat elusive issue, namely whether these written provisions comprise the total of the constitutional guarantee of judicial independence, or whether they are simply manifestations of a deeper, underlying philosophy or natural moral order.

This chapter will show that the bare constitutional provisions have often not been enough to achieve their stated goals but have been subject to evasion and on occasion even subversion or outright manipulation. Reflecting on the constitutionalization of human rights norms in the Commonwealth, Professor Albert Fiadjoe unearths a gap between ethos and literalism, concluding that the вЂ?mere re-statement or absence of human rights provisions is not really an adequate index or fair measure of the enjoyment of human rights.вЂ™^[826] Another distinguished commentator, Professor Keith Patchett, has made similar observations, attributing the disconnect partly to the lack of autochthony in the norms that were formulated in the independence constitutions. In the process of constitution-making, Patchett argues, the drafters failed to consider whether the вЂ?underlayerвЂ™ necessary for the effective operation of these norms was present.^[827]

An independent judiciary is key in the context of these realities, for though itself partly unaccountable, the judiciary is an acknowledged bulwark against executive excess and in this way can hold politicians to account. But as with the itemization of human rights norms and standards, there are limits to what the text itself can accomplish by way of securing an independent judiciary, as will be demonstrated below. It is here that the true potential of implicit constitutional norms is most evident, for where the text is lacking, resort to the constitutionвЂ™s underlying values can help to promote the independence of the judiciary - the latter being vital to secure the ultimate goals of democracy and adherence to the rule of law.

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Source: Berry David S.. Transitions in Caribbean Law: Law-Making, Constitutionalism and the Convergence of National and International Law. Ian Randle Publishers,2014. вЂ” 311 p.. 2014

Introduction

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