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Kawaley defends independence of judiciary

Urging reform: Chief Justice Ian Kawaley (Photograph by Akil Simmons)

The outgoing Chief Justice mounted a spirited defence yesterday of a judicial system free of political interference.

Ian Kawaley also told a conference that the constitutional foundation for the judiciary was “deficient” and needed urgent reform.

Mr Justice Kawaley said: “Judicial independence matters, because every legal person that appears before court has a fundamental right to appear before an independent court.

“Judicial independence matters because the judiciary’s constitutional role is to serve as a third branch of government, independent of the executive and legislative branches.

“Judicial independence matters because it forms part of the central underpinning of the rule of law and Bermuda’s economy needs and depends upon a legal and court system that manifestly upholds the rule of law.”

He added: “The constitutional dispensation for the judiciary, 50 years after it was last defined, is now woefully out of date.

“It needs and deserves reform now.”

Mr Justice Kawaley highlighted a lack of security of tenure for judicial officers and the lack of a constitutional judicial and legal services commission.

He added that the absence of a constitutional requirement for the executive to financially support judicial administration, as well as a lack of constitutional provision for a minister of government charged with upholding the rule of law and judicial independence were also major gaps in the system.

Mr Kawaley was speaking at a conference to mark the 50th anniversary of the Bermuda Constitution, organised by the Centre for Justice at the Bermuda Underwater Exploration Institute.

The event included local and international speakers.

Mr Justice Kawaley said that a proposal for a judicial services management committee had been submitted to Kathy Lynn Simmons, the Attorney-General, last September.

But he added the proposal was “rejected without explanation”.

Mr Justice Kawaley and Acting Registrar Alexandra Wheatley said in a joint statement last month that successive attorneys-general had failed to tackle a staffing crisis, which had left the court system crippled.

Last week, Wayne Caines, the Minister of National Security, said that Mr Justice Kawaley had not made it his “first port of call” to meet Ms Simmons or the director of human resources to highlight his concerns about staffing levels.

Mr Justice Kawaley said: “I would suggest here, had that proposal been accepted — it was a proposal that two Governors have found favour with — it might have alleviated some of the recent brouhaha.”

He added that the creation of a political Attorney-General in 1998 created “no real improvement on the prior arrangement”.

Mr Justice Kawaley explained: “The constitutional role of the Attorney-General is to be the Government’s principal legal adviser. Her chambers represent the Crown in litigation before the courts.

“It is inconsistent with that role for the same minister to purport to represent the interests of an entirely separate and independent branch of government in Cabinet and the House.

“It is undesirable for the chief justice to be negotiating concessions with a constitutional actor who is a regular counsel and or party in litigation before the courts.”

He added: “And so I say to those who suggest I should have had a meeting with the Attorney-General at a time there was a major case before me, that not in a month of Sundays would I have entertained that.”