Judiciary must be accountable, transparent

I am grateful for the opportunity to express my personal views on a few matters which I respectfully submit for your consideration.

I wish to make it clear that while I am a sitting judge of the Supreme Court, this submission is made solely in my personal capacity.  My humble suggestions should in no way be understood as undermining or criticising either the appointment to the bench or the performance of any judge, or of the decisions or operations of the Judicial and Legal Services Commission.

The matters I wish to submit for your consideration arise out of the broader issue of accountability and transparency of the Judiciary as an institution.  While I shall focus on and in any case deal only briefly with the issues of judicial appointments, the composition of the Judicial and Legal Service Commission and accountability in the delivery of judgments I respectfully invite you to consider or to encourage public discussion on whether the existing provisions of the Constitution conduce to accountability and transparency within the judicial arm of government and if they do not, the ways in which these objectives can be achieved.  

If accountability and transparency lie at the heart of a democracy, should the Constitution not provide mechanisms for their attainment. 

 I wish to suggest that in a democracy, a requirement of transparency and accountability in judicial affairs threatens neither the separation of powers nor judicial independence.  It can only inspire and increase public confidence in the administration of justice.

Accountability should begin with the process of appointment to the Bench.  I commend a recent guest editorial of the Nation newspaper of Barbados which was carried in the Guardian newspaper of Friday, September 27,  2013, which makes the point.  The statements contained therein are more than applicable in our local context.  

The current arrangements governing judicial appointment are characterised by mystery, over-secrecy in the name of confidentiality, and may be described as anachronistic in an age when the public is more aware of and is insistent on its entitlement to know and to understand how important institutions work.

Judges exercise immense power which significantly affects the lives, liberty, property and rights of citizens. They supervise the exercise of executive power, they interpret the Constitution.  Judicial activism is a phenomenon which constantly pushes the limits even of judicial power.  In the circumstances, the basis on which a particular person is selected for or invested with judicial office, ought to be available to the public and to withstand scrutiny.

The current arrangements allow for a public announcement to be made only when a new judge takes the oath of office in a swearing-in ceremony at President’s House.  This usually follows much speculation on the part of the legal profession as well as among the judges themselves.  My humble view is that this is no longer acceptable.

The Constitution provides for the establishment of the Judicial and Legal Services Commission (Section 110 (1)), the composition of which is prescribed by Section 110 (2).  The time has come perhaps for us to consider whether the Commission as constituted, is best equipped to carry out the selection process in the face of the changing needs of the Judiciary.

Judges are now more than before required to be time managers, efficient and effective in the control of weighty dockets and courts lists.  The best recommendation for a candidate beyond good character, probity and integrity must obviously be her or his own track record in the efficient delivery of legal services, experience in practice and the demands of the court system at work.

To allow for valuable feedback on a candidate’s history and suitability I respectfully submit that the President of the Law Association be made an ex officio member of the Commission.  Such a measure would by extension allow greater involvement of the legal profession in the selection and appointment process.  It follows that such participation can only be informed if candidates have actually practised within Trinidad and Tobago. 

 In some jurisdictions there is a requirement of practice within the jurisdiction for a minimum period.  In some parts of Canada I am told the period is five years.  This may be a matter for our consideration.  At the same time, I recognise that the door ought not to be closed to worthy candidates who have perhaps held judicial office in other Commonwealth jurisdictions and who have produced judgments which confirm their worthiness.

Further, I suggest that the names of candidates should be referred to the Council of the Law Association, the Chief Magistrate as well as all sitting judges with a view to eliciting relevant feedback which should in turn be referred to the Commission to assist in and more fully inform its deliberations.

I suggest that the membership of the Commission include at least one lay person who has distinguished himself or herself in an area of public life.  Such a person would bring a different prospective to the process.  The inclusion of a lay person assures greater public participation in the process.  I suggest that the Commission should be mandated by the legislation to have regard to factors such as diversity and gender.

The Commission should at all times be expected in the conduct of its deliberations to balance the need for maintaining dignity and a reasonable degree of confidentiality with the demand for transparency and wider participation.

Accountability should begin with the appointment process but it should not end there.  The Constitution provides security of tenure to holders of judicial office.  The circumstances under which a judge may be removed from office are circumscribed.  This is a necessary safeguard of the independence of the Judiciary.  This ought not however to insulate judges from accountability in the fundamental execution of their duties.  The primary function of the judge is to settle disputes by deciding cases. Judges are expected to decide cases competently and expeditiously.

In my view, the problem of delays in the delivery of judgments should no longer be ignored.  This strikes at the heart of the administration of justice and the failure to frontally address it is the best manifestation of lack of accountability of the Judiciary.

The recent judgment of the Privy Council in the case of Ramnarine v Ramnarine (PCA 0021/2011) brought the problem into sharp focus.  To date there has been no official comment from the Judiciary on the matter.

Even now there are reports of judgments outstanding for more than two years at both levels, indeed almost four years in one particular matter before the Court of Appeal.  Judges proceed on retirement leaving judgments outstanding on the undertaking to deliver them.  

In one case, notoriously, a judge left with part heard cases and outstanding judgments totalling almost one hundred according to a newspaper report.  I am not aware that the Judiciary has provided a formal report as to the status of those several cases. 

While our Court of Appeal has identified the main cause of delay in the administration of civil litigation as “the cancerous laissez-faire approach” on the part of lawyers, there has been no analysis as to how delay and inefficiency on the part of the Judiciary generally or with specific reference to delay in the delivery of decisions affects the system.

I raise the following questions.  Has the time come when the Constitution should require specific disclosure on the number of judgments outstanding for a period in excess of nine months, 12 months, any specific period? 

Should accountability mandate disclosure and reporting to Parliament, should the Judiciary or the particular judge be required to give an explanation that is accessible to the public?

Should provision be made for some form of penalty short of removal for nonperformance?

I recall many years ago the late Justice Telford Georges telling me of his experience in one Commonwealth jurisdiction in which the penalty for failure to deliver judgments within six months of the conclusion of a case was the withholding of a portion of the judge’s salary.

Is this something that we should consider or does this go too far?

Should we leave the matter for self-regulation on the part of the Judiciary?

I do not intend to offer the answers to the above questions.  Indeed I do not pretend to have them.  I believe they are matters on which the country should decide.  

My hope is that frank discussion in the wider community will result in consensus on the best way forward to restore respect for the institution and which will re-establish the primary purpose of the Judiciary, as a service provider, charged with the administration of justice.

• Raoul Pantin’s Mark My Word column will appear tomorrow

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