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Washing the judiciary’s dirty linen in public

Published: 
Sunday, June 7, 2015
Douglas Mendes

There is always a deep sense of regret and disappointment when members of the judiciary wash their dirty linen in public. It is not that we do not expect that there will be personal disagreement among them about sensitive issues, such as promotion. It is not that we think them immune to personal grievance about the treatment which is meted to them by those who wield power over their advancement in the judiciary. Neither is it that we do not expect those in authority to experience a certain pique at being challenged about the decisions that they make. Judges, after all, are human and are hurt and affronted just like the rest of us. What we prefer is that the disputes which erupt from time to time are handled with a degree of decorum befitting the dignity of the office. This requires restraint from all concerned and, more than anything else, the suspension of our baser instincts.

I should not by any measure be taken to be suggesting that decisions made by the Judicial and Legal Service Commission (JLSC) concerning the appointment and promotion of judges should not be subject to public scrutiny and even, at times, searching and anxious criticism. The JLSC, like any other public authority, is accountable for the performance of its most important public functions.

The commission comprises the Chief Justice, the chairman of the Public Service Commission, one active or retired judge, and two people with legal qualifications. The commission is responsible for the appointment of all judges, except the Chief Justice, including promotions to the Court of Appeal. Apart from the standardised qualifications which a person must have to be appointed as a judge, the commission is given no guidance by the Constitution as to how it should exercise its jurisdiction. Whether and with whom it should consult, what procedure should be followed, whether and the extent to which prospective candidates for appointment or promotion should be interviewed or given an opportunity to present their case for appointment or promotion are left entirely to the discretion of the commission. There is no requirement that any aspect of the process should be made public, and there is no requirement that the commission give any reasons for any of the decisions it makes. Appointments and promotions can accordingly take place in relative secrecy.

Judges make important decisions which affect the lives of countless people. Yet still, they are not subject to any democratic process whereby they receive the public's stamp of approval, say through an election. There is good reason for this. Judges are required to apply the law impartially. The process of appointment and promotion is therefore more concerned with their competence to carry out judicial functions. This does not lend itself to a political campaign process. We have also rejected any system of subjecting prospective candidates to public grilling by legislative committees, such as occurs in the United States. Again, for good reason. Our tradition of the separation of powers leans in favour of excluding politicians as much as possible from any influence over who is to be appointed to high judicial office. Our preference has been to vest the power of appointment and promotion in the independent JLSC.

Nevertheless, there is every good reason to expect that in the adoption of its procedures the commission would make itself as accountable and transparent as good governance demands and allows, and would adopt a process that is not only fair to all aspirants; but is seen to be fair, and gives the commission the best chance of obtaining the best information available to enable it to arrive at fully informed decisions.

This necessarily means that it must consult with stakeholders as widely as possible. This includes the Law Association, and in the case of promotion, Court of Appeal judges. It is the judges themselves and practitioners who are most likely to have intimate knowledge of the capabilities and character of candidates. In the case of promotion, it is also a good idea to canvass the High Court judges themselves as to who among their colleagues they think is best suited for promotion.

The commission must also adopt clear and precise criteria for promotion. Clearly, seniority cannot be an overriding factor. The longest serving judge is not necessarily the best suited for higher office.

Naturally, an analysis and assessment of a judge’s written product will be crucial in determining fitness for higher office. It is there that the judge’s capabilities will be on full display. Which judgments are consulted should obviously be the result of consultation with the judge under consideration.

Much of this is uncontroversial and the JLSC, from all reports, adheres to most of these procedures.

What conduces to controversy, however, is the absence of any clear, written guidelines which the commission will follow in making its decisions. Had there been such, the dispute between the Chief Justice and Justice Gobin over whether he had at one time said that seniority would be the primary factor in determining promotion would have been avoided. In the belief that this was the policy, it was quite understandable that Justice Gobin would be moved to enquire as to the reason why seniority was not applied in her case. A written policy would have avoided any such challenge. Setting out the criteria in advance, and giving aspirants the opportunity to make representations directly to the commission would also obviate misunderstandings.

Dialogue is healthy and necessary. If, for example, consultation threw up some allegation against a judge, he or she should be given the opportunity to dispel it. Fairness requires no less.

It is unfortunate that the disagreement between the JLSC and Justice Gobin spilled over into the public domain. Maybe some good can come out of an unpleasant situation if it leads to a codification of the commission's procedures.

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