THE RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY

The Rule of Law is a fundamental requirement for the protection of human rights. There must be a set of pre-established general rules governing the Exercise of State Power and the Institution of Public Authority.

One important element required by the Human Rights System, is that limitations on the freedom of the individual can be established only by law. Such laws must be made by the Legislature or Parliament, duly and fairly elected by the people. Furthermore, these laws which may establish limitations on our freedom must be published and made known to us, making it possible for us to know in advance what are the limitations to our freedom.

The Rule of Law means that no one is punishable or can be lawfully made to suffer, whether physically or materially, except for a distinct breach of the law which is established and proven, before a court.

Another Human Rights guarantee for our freedom is that no one should held be guilty of any criminal offence if the act which was done was not a criminal offence at the time it was committed. This is the principle known as non-retroactivity. It means that laws should not be back-dated to catch people. Retroactive legislation of any sort is dangerous and oppressive, and is a denial, of and gross misuse, of the Rule of Law.

The Rule of Law also means that everyone must have equal status under the law, in the sense that no one is above the law, and high officials, like private citizens, are under the same duty to obey the laws of the land, or be punished for disobeying or breaking them.

For the Courts or the Judiciary to be independent they must not be directed or dictated to anyone in the Government or Executive or anyone in the Legislature or Parliament. To ensure that this is not done, or to ensure that any likelihood of any such interference in the system of Justice as operated by our Courts, is minimized. Our Constitution allows for a certain degree of separation of powers between the Cabinet or the Executive, the Parliament, and the Judiciary, which is the system of our Courts.

Another important aspect for maintaining the Independence of our Judges and Magistrates who run our Courts is that they should be adequately paid while in office and should receive a reasonable pension after retiring. A Judge or Magistrate who is poorly paid is more likely not to maintain his judicial independence and his integrity.

Besides, our Courts quite often have to make decisions on the constitutionality of laws. That is to say, whether they are in keeping with the provisions of our Constitution which is the most fundamental law of this country. This problem is of particular relevance for human rights because, even a democratically elected parliament may, from time to time adopt laws which, if implemented in their various aspects, may violate human rights.

Article 8 of the Universal Declaration of Human Rights says: “EVERYONE HAS THE RIGHT TO AN EFFECTIVE REMEDY BY THE COMPETENT NATIONAL TRIBUNAL FOR ACT VIOLATING THE FUNDAMENTAL RIGHTS GRANTED HIM BY THE CONSTITUTION OR BY LAW.”

101 OF OUR CONSTITUTION OF 1979 SAYS: “THE CONSTITUTION IS THE SUPREME LAW OF SAINT VINCENT AND THE GRENADINES. IF ANY OTHER LAW IS INCONSISTENT WITH THIS CONSTITUTION, THE CONSTITUTION SHALL PREVAIL, AND THE OTHER LAW SHALL, TO THE EXTENT OF THE INCONSISTENCY, be VOID.”