Referring to the unattractive salary and conditions of service of judges at that time, then Chief Justice Sir Isaac Hyatali, in October, 1978 made his famous statement that “We were heading for a situation in which the brandy will have to be watered considerably to fill future vacancies on the Bench.”
He returned to that theme in October, 1980 when he said that the inability to find fit and proper persons to fill vacancies in the law departments of the State had “reached the point where we may well have to drown the brandy with water instead of merely watering it, in order to fill the staggering number of vacancies in the Judicial and Legal Service.”
When dealing with the Judiciary, CJ Hyatali no doubt chose brandy as the symbol of a desired standard of potency and refinement.
I do not reference his comments in order to describe the quality of the current Supreme Court Bench. There are many fine judges and the terms and conditions of service in the Judiciary are considerably better than they were 30 years ag, at the time of CJ Hyatali’s expression of grave concern.
However, refinement is certainly lacking in the affairs of the current Chief Justice when he refuses to treat with the existing serious allegations against him. Left out there unanswered, these allegations have damaged and will continue to damage the office and the reputation of the Judiciary as an institution.
A major casualty has been the Judicial and Legal Service Commission (the JLSC), of which it might be fairly said that the brandy has been drowned by the stinky water of the Marcia Ayers-Caesar mess.
Moreover, under the leadership of the currently impugned Chief Justice, the JLSC is continuing to make appointments to the High Court. Given the protected tenure of a Judge’s office and the current ages at which persons are being appointed, these appointments may be binding on two generations. That’s a long time for regret if regret becomes necessary.
An additional concern of CJ Hyatali was that, if the Judiciary was not properly renewed, then “attrition and decay constitute a gnawing threat to the strength and integrity of the Judiciary and attendant thereon is the ever dwindling influence of law in society.”
How right CJ Hyatali has turned out to be when the Prime Minister and the normally supine business community are driven to condemn what they see as intolerable lawlessness and bitter anger in the society, even though they evade connecting the dots between the anger, the lawlessness—including the brazen oppression occurring at Angostura—and the deficiencies in the administration of justice.
It is also arguable that the Caribbean Court of Justice will continue not to gain traction as observers may justifiably fear that frolics outside of the restraint required of a Judge may infect good administration in that august body as well.
It is now well established that the meaning of “misbehaviour” within those constitutional provisions that regulate impeachment refers to any conduct detrimental to the good standing of an office-holder in the eyes of the public.
In its decision in a hearing on a report concerning the Chief Justice of Gibraltar, seven members of the Privy Council adopted and declared as the law that:
“In order to constitute misbehaviour by the holder of an office, the conduct concerned need not be criminal conduct and need not occur in the course of the performance of the duties of the office.
“The conduct of the person concerned might be such that it affects directly the person’s ability to carry out the office. Alternatively, or in addition, it may affect the perceptions of others in relation to the office, so that any purported performance of the duties of the office will be perceived widely as corrupt, improper or inimical to the interests of the persons, or the organisation, for whose benefit the functions of the office are performed.”
The decision ultimately declares that if the outcome of the impugned conduct is likely to damage the perception of the office, then “the conduct is properly characterised as misbehaviour for the purposes of the relevant legislation.”
Is anybody understanding our dangerous descent?