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Sunday, May 7, 2017

Back in 1998-99, when then attorney general Ramesh Lawrence Maharaj was seeking to introduce the Panday government’s parliamentary reform to permit parliamentary committees to have oversight of the work of government agencies, departments and service commissions, there was a major uproar in the society that this was undemocratic.

In making concessions on the amendment to section 66 of the Constitution that only required a simple majority, the Panday government removed the Judicial and Legal Service Commission from the requirement of being subject to the direct scrutiny of Parliament. In the face of virulent attacks on the measure led by the Six Wise Men (as they were called at that time), the following compromise was made:

“66C. (1) Sections 66A and 66B shall not apply to the Judicial and Legal Service Commission.

(2) The Judicial and Legal Service Commission shall submit to the President before 1st October, in each year, commencing in the year 2000, a report on the exercise of its functions and powers in the previous year, describing the procedures followed and any criteria adopted by it in connection therewith, and the President shall cause the report to be laid within sixty days thereafter in each House.”

With that compromise, the Judicial and Legal Service Commission was spared the reality of being summoned to appear before a special joint select committee of Parliament to answer questions about its performance over the preceding year. This was deemed to be an attack on judicial independence if the change was not made.

While we wallow in the blissful ignorance of not knowing any better about how other parliamentary systems operate where the relationship between the legislature and the judiciary is concerned, the Westminster practice has moved on to embrace precisely such a mechanism in the aftermath of the Constitution Reform Act 2005.

According to a 2015 book entitled “The Politics of Judicial Independence in the UK’s Changing Constitution” published by Cambridge University Press, the authors Gee, Hazell, Malleson and O’Brien conclude as follows:

“Our findings show that judicial accountability has increased in many areas, sometimes quite dramatically. The senior judiciary has shown itself to be far less conservative than might be expected in its willingness to embrace greater transparency. A wide array of information on the functioning of the courts is now published by the judiciary through websites and reports. Much judicial business which was previously conducted behind closed doors in the old Lord Chancellor’s Department is now out in the open; annual reports and statistics are produced by the Ministry of Justice and the judiciary-related bodies. This is not just a consequence of the constitutional changes, but results from wider initiatives in Whitehall and Westminster to make government more open and accountable.” (p.256).

The current controversies involving the Judicial and Legal Service Commission and some of its recent appointments of judges to the High Court bench would not enjoy the level of secrecy that our system of government has always tolerated. The effect of the resistance to a more transparent approach to the administration of justice will lead to a rise in distrust by the general public who see senior members of the bar making forceful public comments critical of the Chief Justice and the JLSC and simply wonder what is going on.

All of this is happening at a time when there are calls for T&T to accept the appellate jurisdiction of the CCJ in addition to the original jurisdiction of the CCJ under which we already function. This is where the fallout of the current controversies will end up if there is no credible resolution to the controversy du jour.

The Chief Justice and the JLSC may overcome their current political difficulties, but public confidence will be greatly undermined if there is no transparency in getting to the bottom of the whole fiasco. With appointments, resignations and purported re-appointments being tossed around in a manner that does the judiciary no favours, the general public are powerless to have any voice in this process because their representatives are debarred from any direct interaction with the JLSC because of the compromises that were wrought in 1998-1999 by judicial and political elites who thought it best to demand a waiver of appearance for the JLSC before Parliament.

While we continue to cling to these outmoded thought processes, the Westminster model itself has moved on to shatter the secrecy that once shrouded the judiciary. Gee, Hazell, Malleson and O’Brien go on to say in the conclusion to their 2015 book as follows:

“The increasing trend for the senior judiciary to give evidence to select committees has also been facilitated by the creation of two new specialist select committees : the Lords Constitution Committee and the Commons Justice Committee, both of which have produced several reports on judicial matters.” (p.256).

The Westminster model has progressed and we are unlikely to make any advances on judicial accountability precisely because the culture of secrecy continues to be the hallmark of our administration of justice. The current situation is a battle between secrecy and transparency and, so far, secrecy is winning.


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