FOR THE RECORD – Role of the judge
Judges have been in the news recently on matters touching the method of their appointment, but to the question what do judges do, the simple answer that they judge conceals a good deal about their role and purpose in our system of governance.
Notice I said, governance, even though we regard as sacrosanct, the principle of independence of the judiciary.
It is true that the separation of powers is not entirely a genuine separation in relation to the legislative and executive powers, for members of the Cabinet are both legislators as well as part of the executive arm of the state.
But in relation to the judiciary, there is as clinical a separation between the exercise of that power and the other powers as is possible. This is necessary, for as one part of what they do, our judges have a major responsibility to rule on any law which allegedly infringes the rights given to a person in the Constitution.
In any such constitutional review case, the judges have the power to strike down such a law because the Constitution is the supreme law of Barbados and any other law has to comply with it or perish.
That task is not ever easy, because of the complexity of the issues involved. The eight per cent pay cut legislation in 1991 was such a case, for even if national economic issues faced the Government, the Constitution had to be respected, once the law was challenged. The Government won the case!
Here is how one learned Privy Council judge dealing with an appeal in another Barbadian case put the task of the judiciary in such cases. He opined:
“Parts of the Constitution, and in particular the fundamental rights provisions of Chapter III, are expressed in general and abstract terms which invite the participation of the judiciary in giving them sufficient flesh to answer concrete questions . . . . The terms in which these provisions of the Constitution are expressed necessarily co-opt future generations of judges to the enterprise of giving life to the abstract statements of fundamental rights.
“The judges are the mediators between the high generalities of the constitutional text and the messy detail of their application to concrete problems.
“And the judges, in giving body and substance to fundamental rights, will naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing, they are not performing a legislative function. They are not doing work of repair by bringing an obsolete text up to date.
“On the contrary, they are applying the language of these provisions of the Constitution according to their true meaning.
“The text is a “living instrument” when the terms in which it is expressed, in their constitutional context, invite and require periodic examination of its application to contemporary life.
”It is consideration mainly of this sensitive but necessary judicial power that prompts questions about the control of the appointment process, for in some other parts of the world, “political” judges have been known to give “political” decisions.
Moreover, judges may have private opinions on some issues, or moral and political principles may be stated in the Constitution to which the judges are required to give effect.
But here again is our very experienced judge on this problem in another Privy Council case:
“It is however a mistake to suppose that these considerations release judges from the task of interpreting the statutory language and enable them to give free rein to whatever they consider should have been the moral and political views of the framers of the constitution.”
At a glance, we can see the importance of one aspect of the judge’s job which makes the Constitution live and support our democracy, since infringements of our rights by the state can be redressed by the courts, once we prove our case.
A month ago, Associate Justice Breyer, of the Supreme Court, spoke in London about the courts and democracy. He said the people ought to understand the difficult job that judges do, because if they don’t understand, then the courts won’t get their support.
It is a point which all democratic societies need to bear in mind, because as he said, very often the choice for the judges is between a good cause and another equally good cause.
Ezra Alleyne is an attorney-at-law and former Deputy Speaker of the House of Assembly.