On Thursday last, by a vote of nearly 2 to 1 in the case of each resolution, the members of the Law Association of Trinidad and Tobago, (LATT) the governing body for lawyers, declared their loss of confidence in the Chief Justice. By a similar margin, it dealt with the other members of the Judicial and Legal Service Commission (JLSC) and called on the Chief Justice and his JLSC colleagues to resign.
The vote took place at a special general meeting, which had the largest turnout I have ever seen. Although readers will be familiar with the background, it may be useful to put the meeting in context in order to make the point that this meeting was a key moment in the pursuit of accountability by public officials.
There are two critical components in the exercise of power. One is the lawful authority to exercise the power. The other is the moral authority that underlies the exercise of that power and which rests on the trust and confidence of the citizens.
The general meeting of LATT was triggered by the exercise of the powers of the JLSC to select and recommend persons for judicial appointment. That is their lawful authority. However, the JLSC cannot properly exercise that power without a prior exercise of due diligence on the credentials, suitability, standing and availability of the candidates it is considering.
Members of LATT had before them the issue whether the JLSC failed to do due diligence on the former Chief Magistrate when debating the no confidence motion and call to resign resolutions.
An equally important issue was put before the meeting. That was the reaction of the JLSC to legitimate inquiries about what it had done or failed to do and to criticism of its acts and omissions.
When its acts and omissions were first subjected to legitimate inquiries, the JLSC was utterly dismissive. When forced to respond by the continuing pressure of public opinion, it took out a two-page advertisement in the print media and gave further explanations by means of media release and letter.
The explanations were inconsistent in some respects one with the other. More offensively the JLSC never once acknowledged that it had even a share of responsibility for the now notorious debacle of 53 part heard cases having to be started over. The starting over course of action will of course be subject to obvious coming legal challenges.
Every word uttered by or on behalf of the JLSC, set about to blame others or to shirk responsibility. Its words did not contain even a token expression of regret. It is too late for that now.
That wrong and strong attitude has destroyed the public trust and confidence in the JLSC and has resulted in the overwhelming passage of the resolutions of no confidence and call to resign. The Chief Justice and the other members of the JLSC as a result, have lost their moral authority to a degree that they have lost their legitimacy to exercise the constitutional authority entrusted to them.
Lack of diligence and of accountability are quite different matters and not to be confused—as some have attempted to do—with impeachment on the ground of misbehaviour under the Constitution.
The loss of confidence and legitimacy of the JLSC guarantees, if they cling on to office, that any appointments they purport to recommend in the future will be under a cloud and the legitimacy of the appointees will be seriously infected.
We hear that additional promises of recommendations for appointment have already been made. It appears that in one case there may be more of the proverbial water in the judicial brandy applying the famous description of late Chief Justice Isaac Hyatali. I should also mention the current assignment of civil work to judges who have exclusively criminal law experience and who may not have worked with the Civil Proceedings Rules.
The discredited JLSC ought to have mercy on the institutional reputation of the Judiciary. The JLSC members should walk to protect the reputations of those fine and hard working judges we do have.
The Chief Justice’s senior colleagues should be telling him the game is up both in the interest of the country and their own interest. Stability requires that the Judiciary come out of the baleful gaze of a disquieted public and riotous accused.
Another fallout of this debacle is a further painful questioning by the man in the street whether we can be the ultimate guardians of our legal affairs. This is a bad blow for the Caribbean Court of Justice (CCJ), to which Michael de la Bastide gave a flying start. The CCJ should take careful note of the perils of an “I am the boss” attitude and of breaches of good governance.
This has been a trying time, even for a robust commentator. Many thanks to those whose messages of solidarity have come in pleasing numbers.