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Kawaley: Judicial independence undermined

Chief Justice Ian Kawaley called for action to secure judicial independence as he formally opened the 2018 legal year.

Leading the ceremony for the last time as Chief Justice, Mr Justice Kawaley said: “Judicial independence has been consistently undermined in multiple and often minuscule ways because of an antiquated approach to judicial administration.

“Between 1968 and 1998, the Cabinet Office was in practice responsible for the judiciary.

“Between 1998 and 2008, the Attorney-General has been in practice responsible for the judiciary, which is administratively treated as a sub-department of the Ministry of Legal Affairs. “Each position is constitutionally nonsensical. However, the arrangements might have worked in the past, the current position is practically dysfunctional and responsible for an incoherent approach to the needs of the judiciary.”

He said the issues might have been masked by Bermuda's economic prosperity, but said the “gaping sore” was laid bare by the recession.

“What seems most unforgivable is that even cost-free law-reform proposals, including some that would save public expense, have been studiously ignored or disgracefully delayed.”

One key example was allowing arraignment by video link — something Mr Justice Kawaley said he contacted the Attorney-General about in December of 2012.

He said the amendment would involve deleting 11 words of a single piece of legislation, but despite a chain of e-mails no action was taken.

Kathy Simmons, the Attorney-General, announced during the ceremony that the legislation would be amended this year. Mr Justice Kawaley continued: “I'm grateful to hear from the Attorney-General today that, in fact, that legislation will be introduced, but I am still bound to remark that I fully understand why my mother when irritated by my tomfoolery sighed: ‘Patience is a virtue'.”

He said the situation was understandable given the nature of the attorney-general post, which is both to advise the Government and advance its legislative agenda.

“It's understandable that addressing the needs of the judiciary can be regarded as an irritating distraction from the main task at hand,” Mr Justice Kawaley said.

“That said, there have recently been encouraging signs of enhanced support on the legislative front.

“Nevertheless, the judiciary perhaps needs its own minister, charged with upholding the rule of law, judicial independence and responsible for providing administrative support, modelled after the England and Wales model of the Lord Chancellor.”

Mr Justice Kawaley also gave an update on changes to the physical courts, praising Registrar Shade Subair Williams's response to the abrupt relocation of the Supreme Court Registry.

“Her elegant initial response to the hasty and undignified retreat from the mould-infested Front Street premises has been consolidated in the past few months,” Mr Justice Kawaley said.

“The Front Street premises has been significantly restored and refreshed and now serves as a dedicated Court of Appeal building with an enlarged physical bench and chamber space.”

He added that Supreme Court 2, which had been housed in the upper floor of Sessions House, had been handed over for the use of the Senate.

Meanwhile, further work in the building had improved facilities for jurors.

“The jury room has been relocated and much-enlarged and occupies space previously used for the judge's chambers,” Mr Justice Kawaley said.

“This is a major improvement, both in terms of the integrity and dignity of the jury, and the needs of the present and future have rightly been given precedence over the way things were organised in the past.”

Stepping down: Chief Justice Ian Kawaley leads the ceremonial opening of the legal year for the last time yesterday (Photograph by Blaire Simmons)

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Published January 27, 2018 at 8:00 am (Updated January 27, 2018 at 7:23 am)

Kawaley: Judicial independence undermined

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