Judicial confidential

By Martin Daly

 This column tackles issues which various establishments defending vested interests would prefer remain hidden. It is not the best recipe for popularity. However I long ago took to heart the concept of Thomas Paine, a founding father of the American Revolution, that “independence is my happiness and I view things as they are without regard to place or person”.

This week, therefore, I feel obliged to return more forcefully to the subject of the delay in the delivery of judgments of the court since the issue is being swept under the judicial carpet.

I am grateful to my colleague Senior Counsel Dana Seetahal, for writing to the Judiciary on the subject and equally grateful for her commentary in this newspaper on the landmark judgment in the Stone Street Capital case in which the High Court towards the end of last month struck down legislation which attempted to remove access to the court.

In two previous columns I referred to the Ramnarine decision in the Privy Council, delivered on July 31 this year, which described the delay in that case as “an affront to family justice”.  I suggested then that the Chief Justice make a statement about that decision in the course of his address at the then impending opening of the law term.

Nothing has been said and now other voices have joined mine asking for accountability regarding delayed judgments. The new voices have set their focus on certain criminal appeals but there is also a serious problem on the civil side.

Win or lose, I have generally had good experiences with the judges regarding prompt delivery of judgments. We have a hard working and a sturdily independent Judiciary but there may be one or two repeat offenders in the matter of delayed judgments. Their sins of omission will throw unwarranted disrepute on the good record of the majority.

I do not accept as easily and as glibly as the Law Association does that repeat offenders can be hidden behind good overall statistics relating to the disposal of cases. Statistics spin is no answer to injustice

Such is the balance and independence of the Judiciary that I do not fear reprisal on account of what I write. As for the politicians reprisals be damned and there have certainly been some over the years both as a result of service as an Independent Senator and subsequently as a columnist.

We need urgently to be told whether there are any more judgments in the Family Court so long delayed that the omission to deliver them constitutes “an affront to justice”.

Practitioners seem to believe that there are more such existing affronts, one story making the rounds that a child may have time to grow up before a maintenance application is determined, another that an errant judge was granted additional holidays.

In the Ramnarine decision the Privy Council plainly stated that 12 months delay in giving judgment is excessive.  That seems reasonable, even generous. The Chief Justice should list and account for any judgments outstanding for more than that time. Basic principles of accountability require this.

It should be noted that the Law Lords have hinted that excessive delay in delivery of a judgment is unconstitutional. It can hardly be acceptable for guardians of the Constitution to be parties to committing a breach of the Constitution.

Against the above background one wonders whether the criteria for appointment to the Bench require evidence of organisational skill and competent time management in addition to a sound legal intellect.

In this over sensitive town it is necessary to repeat that the issues I raise are just that — issues that need to be considered in light of rapidly developing international standards of accountability and current disquiet at what one newspaper editorial described as “an unacceptable state of judicial affairs”.

For example, earlier this year, the three distinguished candidates for the top judicial office of Lord Chief Justice in the United Kingdom were reportedly required to satisfy the selection panel of their “contextual awareness of the administration of justice and personal qualities” and, among other things, to write a 2,000 word essay which would demonstrate their analytical skills on a subject given to them.

In 2009 Guyana controversially legislated to require judgments in civil cases to be delivered in 120 days. It is not clear whether the legislation has had its intended effect.

In an address to the Jamaican Bar Association last month, Sir Dennis Byron, the president of the Caribbean Court of Justice, commenting on the Guyanese legislation, said: “I do not support the involvement of the legislature in judicial affairs. However, this can always be averted if the judiciary itself takes proactive steps to introduce its own internal regulatory processes to address unacceptable performance standards.”

One can only hope that legitimate enquiries about delivery of judgments will not be met with some claim of judicial confidential and that the Judiciary will tell us something.

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