It is difficult to move away from the current controversies swirling around the judiciary. With the revelation, last Sunday, of Mrs Marcia Ayers-Caesar’s version of what took place between her and the Chief Justice regarding unfinished cases—part-heard matters—the plot has thickened.
It is now common ground that on the evening of April 10th Marcia presented a list of part-heard matters to the Chief Justice, which he read. What is unclear is what the list contained.
In one of its press statements the Judicial and Legal Services Commission (JLSC) stated that the list did not describe the matters or disclose that witnesses that had already given evidence in some of the cases on the list. The JLSC gave no indication of the number of matters on the list.
Marcia, on the other hand, says that there were 28 matters on that list. If that is so, it is difficult to understand why the revelation of a significant number of matters did not cause the JLSC to mash brakes on Marcia’s swearing in as a High Court Judge.
This becomes more inexplicable in circumstances where it was the further disclosure that the part-heard matters numbered 52 that caused the Chief Justice to hustle down obtaining Marcia’s resignation from her appointment as a High Court Judge.
It seems obvious to me that, from the moment it became known to the Chief Justice from the presentation of the list that, whatever their nature, there were more part heard cases than those which Marcia had disclosed in her prior oral representation, additional due diligence was required.
Alleged lack of availability of records has come into sharper focus as a result of reading Marcia’s side of the story. She said that she was able to “discover” that she had 28 part heard matters by making inquiries of the Note Taking Unit of the Magistracy. She also claimed that she was able to obtain the information within 24 hours.
Meanwhile the tweets of another appointee from the round of controversial appointments became front page news. The references to the female anatomy are offensive when assessed by current standards of the respect to be shown to women. The tweets have a distinctly Trump-ish flavour.
I was aware that current due diligence practices include a search of the social media posts of prospective employees. Internet research suggests that 60 percent of employers in the United States do this as well as many Universities.
Some apologists for the JLSC are declaring that criticism of the Chief Justice is politically or racially driven. That is inevitable in a divided society like ours. It is important therefore to emphasise why unaligned commentators are pursuing the disastrous results of flawed High Court appointments.
High Court appointments effectively give security of tenure for the life of the appointee. The grounds for removal of a Judge are restrictive and subject to a cumbersome removal process. Judges exercise some of the most coercive powers of the State and routinely make decisions about the life, liberty and property of citizens. These decisions have far reaching consequences on the lives of citizens, both on those before the Court and on their families and their businesses or occupation.
Given the current trend of appointing Judges at relatively early ages, some of our Judges exercise these awesome powers for upwards of 15 years.
In the circumstances outlined above, there is a huge risk factor to be managed in the course of the appointment process. Any so-called rigorous process must involve risk management techniques.
I made a number of the points contained in this column in two television interviews last week. I showed mirth at some of the questions put to the candidates for judicial appointments, presumably to test their capacity for logic.
The questions were described by one newspaper as bat and ball questions because one of them required the candidate to deduce the difference in cost between a bat and a ball to which cost factors were ascribed.
I referred to our love for fads when adopting some practices from abroad not relevant to our culture. One newspaper reported my remarks as dismissive of a love for “bats” not of the fads to which I was referring.
From a comic perspective, reference to “bats” might be transferred from the sporting implement context to the old English expression “bats in the belfry.”
The expression refers to the occupation by bats of English bell towers, also known as belfries, and their erratic flying around in the bell towers. Bats in the belfry refers to someone who acts as though he has bats flying around erratically in his head.
By contrast, the country requires judicial heads to be clear. We must continue therefore to pursue the failure of the JLSC to apply the highest standards to the appointments of judicial officers, who acquire a constitutional status of near untouchable.
Let’s not use bats and fads for the purpose of appointments.