Thursday, February 22, 2018

The Ventour letter

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Mark Fraser

 As one of those who queried the resignation from and the re-appointment of retired Justice Ventour to the Integrity Commission, fairness requires that I acknowledge the positive step he ultimately took.  He has specifically responded to invitations to clear the air and to take responsibility for not bringing the issue of his outstanding judgments to the attention of the President before he was appointed.

Despite the contents of Mr Ventour’s letter to the editor of the Trinidad Guardian, there is, however, some more air to be cleared. What is the status of the reporter whose accreditation to President’s House was reportedly jeopardised for asking the questions that Mr Ventour has now recognised required answers?

Additional air-clearing is also required regarding the time for delivery of judgments in a broader context, such as the recent strictures of the Privy Council regarding a delayed judgment in the Family Court and other delayed judgments (now believed to be relatively few) of which practitioners are aware. I will return to this shortly.

In the admirable circumstances of a high public official, like Mr Ventour, responding to calls to account, one must be as kind as possible when treating with his response even though it must be said he should have got there sooner.

One useful item in Mr Ventour’s response is his clear recognition that the practice of judges retiring from the Judiciary and being re-appointed for a very short period (sometimes for a day)to deliver outstanding judgments is a practice that should cease.  His statement reveals, consistently with our sensibilities constantly being blunted by “misstep” and manipulation, that it was the acceptance of that bad practice that led to the blank of outstanding judgments from his mind when approached for appointment to the Integrity Commission.

Mr Ventour’s stated this: “I would respectfully submit that good governance within the Judiciary demands that in cases where a judge’s retirement is imminent, no new cases should be assigned to the judge’s docket within six months of the judge’s retirement date (or such shorter period as the circumstances warrant). The judge should be allowed to complete all outstanding judgments prior to his/her retirement.”

It is helpful to have recognition from an insider that the Judiciary is subject to good governance. The institution is, of course, subject to the highest standards within the range of standards constituting good governance, because it is the constitutional lynchpin of justice and fairplay.

As my colleague Sunity Maharaj observed in one of her recent columns: “Although weighed down by irregularities, delays, costs and inconveniences of every kind, the judicial system is critical to seeding a culture of justice in this land where power remains free to run roughshod. We need a solid body of jurisprudence to tame power’s enduring instinct to exploit, oppress, deny and dispossess.”

It is important to acknowledge that there was a recent flurry of long-awaited judgments. It seems that public and editorial opinion, in the tradition of the famous Ambard case, involving the then Trinidad Gazette, has prevented justice from becoming the “cloistered virtue” against which Mr Ambard successfully fought.

Nevertheless, while the air is being cleared, one respectfully hopes an account will be forthcoming of all judgments more than six months old and that we will be informed of the target dates for their delivery.

Without such an account, the recent accomplishments in delivery of outstanding judgments may be unnecessarily qualified if we have to rely on word of mouth. One can only speculate, as I have done above, that outstanding judgments are believed to be relatively few.

Moreover, unless a protocol concerning the delivery of reserved judgments is established there may be a natural enough fear that things will slip back to the point at which they were when the public became uneasy.

Any public unease about the Judiciary may undermine the institutional credibility of the Judiciary and encourage the riding roughshod to which Sunity has referred.

The Ventour letter may also have relieved a little of the unease about the Integrity Commission given the Commission’s unfortunate history. This is a particularly sensitive time for the recruitment of persons to constitutional institutions.

There is need for these appointments to go smoothly because the country has been badly hurt by several recent pronouncements that once an act or omission of a public official is not unlawful it’s okay.

The appointing authorities regard the recall of retired judges for a day or two as a lawful act. I have my doubts. Thankfully, by now identifying such recalls as bad practice, Mr Ventour has made a contribution towards helping us to make the critical distinction between what is lawful and what, in the minds of citizens, is legitimate.

What if the position that what is lawful is also necessarily legitimate had held rigidly through the centuries, would men as first citizens still be permitted to own slaves and women as chattels?