“At stake here is the constitutional right to freedom of expression, which is ventilated not only during the Carnival season but is an entitlement which belongs to all citizens protected under the Constitution and the common law, subject only to the law of defamation or other statutory constraints…”
In the following Letter to the Editor, Anthony DJ Gafoor of Port of Spain shares his concerns regarding issues affecting the judiciary:
The statement issued by the judiciary immediately after the Chief Justice’s departure out of the jurisdiction during the Carnival 2019 season, seems to suggest that some measure of commentary on the issues surrounding the judiciary is justifiable provided it does not go too far. The problem is, how far is too far?
The oblique reference to the case of Ambard—in which the immortal mantra was stated that justice is not a cloistered virtue—which was indirectly cited in the statement, is also tantamount to admitting that the judiciary and the CJ are not above being the subject of commentary.
Indeed in many other Commonwealth countries, the judiciary regularly attracts comments—not all of which are positive—given the sensitive and challenging nature of its work.
Moreover, given Justice Seepersad’s response disassociating himself from the judiciary’s statement, it is apparent that the statement was not issued with the blessing nor approval—and possibly did not even following consultation—of all members of the judiciary.
At stake here is the constitutional right to freedom of expression, which is ventilated not only during the Carnival season but is an entitlement which belongs to all citizens protected under the Constitution and the common law, subject only to the law of defamation or other statutory constraints.
Even though the ordinary citizen is entitled to ventilate the frustration which is clearly being felt over the administration of justice, the CJ is also entitled to respond; albeit that, in the spirit of those who hold such high office, it may have been better not to appear to indirectly suggest that the ‘ole mas’ players have gone too far, which is the perception conveyed by the response from the judiciary.
In its wisdom, Parliament provided for an investigative process to be triggered under Section 137 of the Constitution for exactly this reason: that, like Caesar’s wife, the judiciary should be beyond reproach.
There have been various other enquiries which have been held over an extended period of time, prompted by concerns raised by both judicial officers and citizens. The Karl de la Bastide inquiry in 1972 sought to investigate the disaffection within the magistracy under Chief Magistrate Roopchand; the MacKay enquiry into the administration of justice in 2000 was chaired by a former Lord Chancellor of England and Wales and sought to investigate concerns over the accountability of judges; the Telford Georges’ inquiry—undoubtedly one of the most eminent jurists ever to have emerged out of the Caribbean region—in the early 2000s into the independence of the judiciary was convened to examine, among other issues, the appropriate way for communications between the office of CJ and Cabinet to be dealt with as well as the question of the judiciary managing its own budget, after an impasse between then CJ Michael de la Bastide and AG Ramesh Lawrence Maharaj, SC; and in 2007, pursuant to Section 137 of the Constitution, distinguished commercial law judge Lord Mustill chaired an enquiry into an allegation of interference with the course of justice by former CJ Sat Sharma, which cleared him of any wrongdoing.
So there is well established precedent for ensuring that the judiciary does remain above reproach by ensuring that both the CJ and the ordinary citizens are afforded an adequate opportunity to express their respective concerns before an independent arbiter.
It is of particular importance to note that both the inquiries held circa 2000 arose out of concerns expressed by former CJ de la Bastide who not only welcomed them but indeed co-operated fully with the process.
As a former Chief Justice and first President of our regional court, the Caribbean Court of Justice, many may feel that Justice de la Bastide set the appropriate standard for how to deal with such matters where there is likely to be continuing tension between the judiciary and the government of the day surrounding the administration of justice.
Several months ago, I suggested that the nature of the dispute within the judiciary could perhaps discreetly be dealt with via mediation or some other form of ADR; so that interested parties may have an opportunity to seek an amicable resolution to the issues impacting the judiciary and thus by extension the people of Trinidad and Tobago.
Since then we have seen, among other developments, the completion of an investigation by the Law Association where that body, which is charged inter alia with seeking the interests of and protecting the legal profession, sought the assistance of the CJ in meeting the concerns raised by two regional jurists and the legal profession as a whole.
Regrettably none of these alternative proposals seems to have found favour in terms of being taken forward and it has fallen to courageous citizens to step forward and continue to articulate the concerns that are being expressed over the administration of justice.
Let us hope that there will be a balanced and measured approach to resolving many of the issues raised under the tenure of the current CJ such as the composition of the JLSC and the judicial appointments made by a body which was held by the Privy Council not to be properly constituted; the appointment of judicial officers who do not have pending enquiries surrounding their appointment and tenure; and the accountability and transparency over various concerns in the public domain, which the CJ has consistently [claimed] as among the hallmarks of his office.
These should be given full effect so as to meet the concerns which have been expressed so frequently by some of the most long-standing judges and senior counsel, distinguished former diplomats as well as the citizens of this beloved country.
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We need to have a public consultation on all issues involving the judiciary. Citizens have no forum and public scrutiny is an important part of a fair judicial system.