The TCI’s justice system has recently provoked an onslaught of public criticism. Most of the criticism is long overdue, fair, and reasonable. The attorney general and the president of the Bar Association, however, have come running to its defence, with less than subtle threats of fines and imprisonment. Those threats, in turn, have rightfully caused even wider public indignation.
In a criminal justice system that is adversarial, with a prosecution and defence on opposite sides, an independent judiciary is critical, but at the top of most lists of criticisms are grave concerns about the independence of the local judiciary. There is a perception that there is little distinction between the FCO, the SIPT, the former legislature, the governor, the local judiciary, and that the criminal justice system has been compromised, having been sewn up to ensure convictions of the SIPT’s targets, regardless of the evidence of actual guilt or innocence.
This is part of the case against the TCI’s criminal justice system:
There has been a systematic and methodical overhaul of the law over the last three years, most notably the constitutional right to trial by a jury of one’s peers, to make specific convictions much easier.
There has been constant tinkering with laws, in some cases immediately after a challenge reveals limitations on certain investigative powers. The changes that have been made erode our constitutional freedoms and rights in order to stack the deck in favour of the SIPT. Critics say it is like playing a board game against an opponent who has the ability to change the rules, mid game, and who frequently does so.
Judges have apparently engaged in verbal exchanges with persons in the guest gallery in open court, answering complaints about the adequacy of seating arrangements with opinions about the extravagant and misplaced spending choices of local government and the merits of the complaints, eerily echoing sentiments frequently expressed by the governor.
On certain SIPT applications the court has deferred its statutory obligation to keep proper records of its proceedings to the SIPT, presumably on the basis that the court’s staff cannot be trusted with the information. We know of no other jurisdiction where this happens, but in any event the clear casualty of that choice is the perception that the TCI has an independent and impartial judiciary.
There are reports that the SIPT are misleading the judiciary on basic principles of law and on issues of fact and that the court is mindlessly and blindly accepting self-evidently false and material assertions of fact, dancing around what should be obvious.
There are reports that the Governor’s Office has been speaking with the judiciary on sensitive political matters before the court, apparently only to get an update. Given the governor’s frequently expressed political opinions, critics argue that he should not be communicating with the judiciary at all on undecided cases, even for an update.
What is interesting about the threats is that most of the public criticism has been the charge that there is no separation of powers and that the judiciary has become the handmaiden of the FCO. In a March 2011 speech, the chief justice of England and Wales championed freedom of the press as one of two fundamental institutions in a free and democratic society; the other being an “independent judiciary” separate from the executive or government. He said that both are interdependent, and that in the absence of a free press an independent judiciary is not likely to flourish or fulfill its true constitutional purpose. He insists that in a properly functioning liberal democracy both protect each other.
I think there is merit to that view and, indeed, in the wake of recent and heavy criticism of the judiciary the very judge who engaged guests of the court in exchanges about the adequacy of seating and local government’s spending choices, echoing the frequently expressed sentiments of her boss the governor, finally discovered the fortitude to call out the SIPT on a request to ridiculously restrict the travel plans of one of its targets. Sometimes the obligation to apply the law without favour requires encouragement from a free press.