By K. Quincy Parker

During an address on Judicial Temperament, President of the Caribbean Court of Justice (CCJ) Sir Dennis Byron offered his thoughts on how judges could rise above what seems to be the common suspicion that judges lack independence.

Sir Dennis gave the address during the Barbados Annual Judicial Retreat 2012 in early August, at the invitation of Barbados Chief Justice Marston Gibson. Early in his address, he defined judicial temperament, citing the American Bar Association (ABA) definition: having compassion, decisiveness, open-mindedness, sensitivity, patience, courtesy, freedom from bias and commitment to justice.

“The law would be corrupted if interest groups, politicians, powerful or wealthy private citizens or public opinion could intimidate a judge into interpreting a law to their liking,” Sir Dennis told the judges. “The judge must be as independent as is humanly possible. Judges must have the

He said that it was also important that the judiciary as an institution is independent enough to resist encroachments from the other branches of government that could place the judiciary – and the decisions its judges make – under the control of the political branch.

“On this point the adequacy of judicial salaries, security of tenure, budgets, and working relationships with the other branches of government, among other concerns, are critical to the judiciary’s capacity to preserve its institutional integrity,” he said.

“Judges occupy the role of umpires and their credibility turns on their neutrality. To preserve their neutrality they must neither prejudge matters that come before them, nor harbour bias for or against parties in those matters.”

Sir Dennis noted that it is scientifically established that everyone, including judges, have unconscious biases. Because of this, judiciaries should expose their judges to training in the social context of their adjudicative function. There is a well-developed curriculum and expertise of training in this area.

“Therefore judges are required to recuse themselves not only when the judge has a personal bias or prejudice concerning a party but also when a judge’s impartiality might reasonably be questioned,” he said. “Appearances matter, because the public’s perception of how the courts are performing affects its confidence in the judicial system.”

In fact, Sir Dennis went further: he said the public perception of the court is critical because the judiciary is not directly accountable to the electorate and thus – as he put it – is more vulnerable to public suspicion.
“If the public loses faith in a judiciary, the obvious solution will be for the executive or the legislature to intervene to the detriment of judicial independence and the rule of law that judicial independence makes possible.”
Sir Dennis said, however, that the public has its role to play as well: it takes two hands to clap, he said.
“When judges follow the rule of law, it is important that the public perceives and acknowledges them as doing so.”
He said the public should realize that judicial independence is not a privilege of the judge, and that its manifestations are not simply perks of office.
“Judicial independence is a right of the citizen,” he said. “It is the way in which the constitutional guarantee of fair and impartial justice is honoured. Therefore the citizen should cherish and fight for it, just as the judge must exhibit it at all times.”