From Advocate Philip Sinel.
IN his Christmas message, the Bailiff claimed that during his terms of office one of the changes has been that the Island has begun to see itself much more as a small nation, independently capable of great things.
I have a different and rather worried view as to what has actually been achieved over the last 15 years by and for the Island and indeed the Islanders as individuals. In my own view we have had forced upon us, and when I say us, I mean both the Island as a whole and the Islanders as individuals, repetitive losses of liberties, freedoms and privileges.
These have, largely speaking, been forced upon us by our unelected leaders at the behest of Westminster. We have seen the attendant MacDonaldisation of the Island by dint of legislation which removes freedoms, privileges and privacies, which legislation has been little examined, let alone opposed by our supine States Members who seem to have no conception of what the legislation that they pass means or its short or long-term effects. To the extent that they do understand it, they are, largely speaking, too cowardly to oppose it. AdditionaIly, legislation has specifically been passed in order to cement the power of the oligarchy and in particular, our unelected leaders over us.
To give but three examples:
• An amendment to the Law Society of Jersey removing the Crown Officers from the same, this freeing them from the review and disciplinary provisions applicable to all other members of the legal profession.
• A multitude of ‘mutual’ disclosure and taxation treaties have been entered into with numerous foreign countries, all of benefit to them but not to us or ours.
• The Extradition (Jersey) Law (2004). This is an astonishing statute. It has been passed as part of the MacDonaldisation programme. What it says (at the behest of Britain and the USA), is that over 150 countries, with whom Jersey has no proper relationship, can extradite Jersey citizens for breaches of their laws. These breaches do not have to have been committed on their territory and in the majority of cases the requesting country has to file no evidence of a breach at all, they simply have to make the allegation. This means that Islanders are exposed to long periods of incarceration at the whim of foreign countries in respect of actions that they have undertaken solely within this Island and which actions may well be more than lawful within our own shores.
I have, by way of lectures, delivered to the finance industry over the last two years, repeatedly warned of the dangers to our citizens of this unchallenged, unread and largely un-understood legislation. I now note that Australia is in the process of extraditing a local accountant. In my view, this will be followed shortly by further demands from other countries for the bodies of our citizens, most likely from the United States of America.
It saves a lot of time and trouble, for a foreign country, if there is no need to pass legislation discriminating against the people who make use of Jersey, if they can simply lock up some of our professional people. Jersey can henceforth be relied upon to give people from that country a very wide birth.
I turn now to the Bailiff’s repeated statements in relation to judicial autonomy. Jersey does not have and cannot pretend to have judicial autonomy. The reason for that is because we have no say locally, over the appointment or continuance once in office of our judicial officers (judge) or for that matter, our Crown Officer (Attorney General, etc). All of our judges are dependent upon the good will of HM Government for their appointment and for their continuance in office.
In 22 years of practice I have witnessed or had experience of two constitutional crises. The first was the Vernon Tomes affair, the second was Cantrade and the Edwards Report. I believe that we are all about to ensure a third, which I believe will arise inexorably from:
• The Island’s actual and perceived unwillingness to deal in an appropriate fashion with the treatment of its young people; and
• The absence of judicial independence (independence from political considerations), so often demonstrated by the present Bailiff, who has made politically charged statement after politically charged statement in relation to matters which are best left to politicians. Our courts should of course make judicial decisions unshackled by political considerations; and
• The failure of our constitution to provide courts which comply with Article 6 of the European Convention of Human Rights, the right to a fair trial before an impartial tribunal.
As to the last-mentioned matter, I have recently read a judgment of the English Court of Appeal on an application by the Barclay brothers in relation to the Island of Sark. Surprisingly, some good may yet come of the Barclay brothers self-interested meddling within that island. The judgment of the Court of Appeal states very clearly that separation of powers, ie the judiciary from the executive and the legislature, is a necessary substantive step in providing courts which are compliant with Article 6 of the European Convention on Human Rights (provision of a fair and public hearing by an independent and impartial tribunal established by law).
‘… I do, however, see the combination in Sark of the judicial with the other functions of the Seneschal as inconsistent with the Article 6 requirement to establish by law an independent and impartial tribunal …’
‘…This is not slavish adherence to an abstract notion of separation of powers but a recognition that it follows from the Seneschal’s functions in his non-judicial capacity as Chief Pleas, as already described, that his independence and impartiality are capable of appearing open to doubt …’
– PILL LJ
It follows from the application of that judgment that Jersey’s Courts are not Article 6 compliant. This has been apparent to myself and indeed to others within the Island for a long time. Given the recent judgment, it is only a matter of time before change is imposed upon us from an external source. It is a matter of considerable regret that thus far we have not produced the impetus ourselves to go forward with our own version of a functioning constitution which should necessarily replace the recent hodge-podge of feudal legacy combined with ineffective town council politics (foisted on us, I note, by an Englishman called Cecil), the net effect of which is that the will of the Islanders is not implemented by its rulers and that its unelected rulers are left without guidance or discipline.
Our constitution, as it presently stands, does not safeguard the rights and freedoms of the Island or of the Islanders, furthermore at many levels it exposes us to ridicule in the eyes of third parties. I well remember speaking to a respected member of the Caribbean judiciary who was visibly shocked when he found out that Jersey had yet to embrace the doctrine let alone the actuality of the separation of powers.
If we are to preserve our rights and liberties, both en masse and individually we must now take the opportunity to put forward constitutional reforms that ensure the judges are unaffected by political considerations and that political power is vested in those who the electorate have put into place and can therefore remove.
A thorny question we will have to grapple with is who, under a new and improved constitution will appoint our judges. It must not be our politicians because one of the primary functions of the judiciary in a properly regulated society is to protect the people from the government.
79 Bath Street,