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SELECTING JUDGES

Published: 
Saturday, September 22, 2018
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DR HAMID GHANY Last Monday at the ceremonial opening of the Law Term, Chief Justice Ivor Archie defended the methods by which applicants for judgeships are assessed. This has become a contentious matter in recent times.

It was also a matter that was considered by a special committee of the Law Association under the leadership of Justice Desiree Bernard (formerly of the CCJ).

In making a general comment on the committee's report, Archie said:

“Although it contains some helpful observations, some of which I am in agreement with, I find myself respectfully unable to agree with several of its implicit and explicit assumptions…”

According to the committee's report:

“3.26 The actual process of selecting the persons to be offered judgeships is opaque. Based on submissions of recent applicants, the JLSC conducts an interview with the applicant which may last about one hour and which touches on their previous legal practice experience, awareness of current developments in the Judiciary, work habits, and interests. The Committee was not able to ascertain whether the JLSC conducts formal scoring of applicants, the nature and extent of the discussion, or whether voting occurs.” (p 26).

Undoubtedly, there is a gap between the Chief Justice's view and the views of the committee. All of this is unhelpful to the average citizen who has to trust the process of selection so that when they go before a judge in the civil or criminal courts, they can have confidence that the person they are facing can be trusted, not just for the office they are holding, but for their competence and ability.

All of this back and forth is only serving to undermine confidence in the Judiciary. Is this all about judicial elites settling scores about differences between themselves and then settling those scores in the public domain?

At what point is there going to be some kind of public reckoning that the Judiciary cannot go on like this. Because if it does, the demand for public and parliamentary involvement in the process of selecting judges will become a demand that will be made.

The Law Association committee made the following statement on this as follows:

“5.34 The Committee is of the view that there ought to be no parliamentary involvement in the process of judicial appointments in Trinidad and Tobago as obtains, for example, for federal judges in the United States of America for the following reasons:

1. Any parliamentary involvement imports partisan political and perhaps ideological considerations into the process which is likely to taint the administration of justice;

2. There will be no privacy and confidentiality for applicants which could be harmful to them personally or professionally.

3. The effect of these negatives will serve to discourage meritorious candidates from applying for judicial office…” (p 49).

So where does this advocacy for secrecy leave us? The judicial establishment wants to maintain secrecy. The Law Association committee wants to maintain secrecy. The legal profession is divided over the way the judicial system is being operated and somehow the general public is expected to trust that all is well and we should mind our collective business and focus on our own work because they have their work to do. If this is how the Judiciary is going to be handled, then we are in serious trouble.

On July 5 instant, Sir Ronald Sanders posted the following on his blog site:

“The reason for the seamless transition from Sir Denis Byron to Justice Adrian Saunders as President is that there is no role for governments or political parties in the appointment of justices of the CCJ or the Chief Justice/President. The search for, and nomination of, the President, and other justices, are carried out by a Commission comprising representatives of the Caribbean bar association, the Law Faculty of the University of the West Indies and other Caribbean public service and legal services organisations. When Justice Adrian Saunders was installed as the third President of the CCJ in Jamaica by Sir Patrick Allen, the Governor-General of Jamaica, the installation was nothing more than ceremonial; the governments of CARICOM having accepted the decision of the Regional Commission.”

There are two debates that emerge from this commentary. Why should there be no political role in the assessment of judicial nominees? Why is a Governor-General (who is a representative of Her Majesty Queen Elizabeth II) installing the President of the CCJ into office?

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