Compounding the cultural and structural paralysis is a palpable fear of institutional destabilisation. Many judges in fragile democracies harbour an acute anxiety of appearing ‘too activist’. They dread allegations of judicial overreach or the weaponised charge of interfering with an elected executive.

Consequently, courts drift towards excessive restraint even as executive power becomes increasingly muscular. Justice Andrew Smikle, a former Court of Appeal judge, wrote in the Jamaican Law Journal (2021) that “judicial restraint in Caribbean democracies has crossed the threshold into judicial passivity”’ particularly in cases involving government defendants.

Yet judicial restraint must never be confused with judicial passivity. Modern Jamaica increasingly exhibits the precise indicators that make an assertive judiciary vital: expanding executive authority, emergency-style legislation, fractured public trust, concentrated economic power, and a pervasive perception of selective accountability. According to Freedom House's 2025 Nations in Transit report, Jamaica's ‘Judicial Independence and Rule of Law’ score declined from 72 out of 100 in 2019 to 64 out of 100 in 2024, marking the steepest decline in the Caribbean region.