The following Editorial was extracted from the Barbados Advocate and deals with the recent controversial statement by Attorney General of Barbados Adriel Brathwaite.
The view, most frequently attributed to the French philosopher, Baron de Montesquieu, and later espoused by Thomas Jefferson, that there does and should exist a separation of political power among the legislative, executive and judicial branches of the State was recognized by the Judicial Committee of the Privy Council in 1977 in Hinds v R as being implicit in Westminster-style Constitutions such as those generally adopted in Barbados and the rest of the region.
Of course, in a few cases, we have chosen to practice the “Westminster-export” style of governance rather than its pure form and hence local political culture does not always strictly observe these divisions. Hence, the members of the judiciary are, in substance, selected by the executive Prime Minister and rather than Cabinet being accountable to Parliament, the numerical reality of the Cabinet is such that Parliament is rather beholden to the Cabinet decision. Indeed, other tenets of Westminster type governance such as a Minister’s accountability to the citizenry for the actions of his or her Ministry and, sometimes, the notion of collective responsibility are ignored.
In three recent instances in the region, we have observed what might be considered at least negligent trespasses into jurisdictions that properly belong to another branch, the judiciary, by highly placed members of the executive.
In the first instance, the Prime Minister of Barbados publicly queried the then recent occasion of bail being granted by the court to an individual charged with murder. Although this sentiment was couched in the benign language of concern for the feelings of the family of the victim who might easily encounter the accused in public, it nevertheless intruded on the exclusive discretion of the judicial officer to grant bail whenever he or she considers that this is in the interests of justice.
More recently, we had the Attorney General of Jamaica declaiming that radical legislative changes were in the offing to tackle the ballooning murder rate in that country. In proposing these, she noted, “While judicial discretion must be preserved and respected, Parliament, in the exercise of its powers to pass laws for peace, order and good government, will have to set the threshold for the consequences that will flow when people choose to murder and cause mayhem.” This is a clear assertion that in any conflict between the existence of judicial discretion in the grant of bail, for example, and the legislature’s view of what will conduce to peace order and good government in the country, the latter will always trump the former.
At a theoretical and jurisprudential level, this opinion is unimpeachable. However, the mere suggestion by the state’s chief legal advisor that the exercise of a judicial discretion may not be in the state’s best interests marks an attempt to abrogate unto the executive notion what should clearly and constitutionally be a matter of judicial decision purely.
It is the absence of any clear redeeming or justifiable thesis for his recent announcement other than his own perception of justice as to the grant and refusal of bail in two distinct cases that makes the recent observation of the local Attorney General as to the comparative merits of the decisions perhaps the most egregious trespass of the three.
Given that it was uttered at a police gathering, it might be owed to a combination the fraternal conviviality of the occasion, but the learned Attorney’s approximation of the case of the police officer charged with murder and that of another accused identified by his terrifying alias only suggested not an appeal to a higher, more humane ideal but an instinctual “going to-bat-for-our-man-too”.
In our view, this amounted to an assertion that “if I were the presiding officer, I would have decided differently”, and flew, unwarrantedly, in the face of any constitutional separation of jurisdiction, express or implied, between the executive attorney general and a judicial officer.