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WHY NO SCRUTINY?

Published: 
Sunday, July 30, 2017

The revelation last week that the Judicial and Legal and Service Commission had failed to submit its constitutionally-required reports as mandated by Section 66(C)(2) for the period 2008-2016 was shocking. This report places the JLSC into further confusion for what would undoubtedly be a breach of the constitutional provisions once this is so.

Section 66(C)(2) reads as follows:

“The Judicial and legal Service Commission shall submit to the President before October 1, 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 60 days thereafter in each House.”

Based on how this section is worded, one has to ask whether or not the JLSC submitted any report to the President. If they did, then did the President fail to transmit the report to the presiding officers in each House? These are important questions to be asked since they go to the heart of obedience to the Constitution by either the JLSC or the President or both.

If the answer is that neither party submitted any report then they are both in breach of the specific constitutional provisions. The timeline of 2008-2016 would coincide with the term of office of Ivor Archie as Chief Justice to date and also the presidencies of George Maxwell Richards (2003-2013) and Anthony Thomas Aquinas Carmona (2013 to present).

On top of that, how come no parliamentarians or parliamentary staff picked this up? If they did, why was this not made public before now? There is a clear reluctance to provide information about the actions of the JLSC by simply looking at the manner in which the Marcia Ayers-Caesar matter was handled when opposition senator Gerald Ramdeen made a request of them to provide the criteria for the appointment of judges.

Furthermore, the manner in which former president George Maxwell Richards handled the Integrity Commission crisis in May 2009 was suggestive of a manner of not submitting himself to public scrutiny until the demands of the public and other civil society bodies forced him to address the nation after he had returned from a vacation that he should have postponed.

The current President Anthony Thomas Aquinas Carmona is little better given his less than stellar performance in providing timely information for the public on the resignation of two members of the JLSC that was delayed from June 22 when the resignation letters were received until July 6 when they were made public.

The parliamentarians must demand accountability on this matter of the absent reports for the period 2008-2016 from the JLSC. Standing on its own, a constitutional breach, if charged to the JLSC, must become yet one more factor to be taken into account by the Prime Minister in commencing proceedings against Chief Justice Ivor Archie under Section 137 of the Constitution. Failure to do so will make the Prime Minister now part of the problem.

The Government is talking seriously about urgent legislation being brought to Parliament to attempt to fix the Marcia Ayers-Caesar crisis in the magistracy in relation to part-heard matters that were left incomplete before her elevation to the Judiciary.

The culture of secrecy has landed the JLSC in hot water and it looks like the Presidency is not too far behind. The country cannot afford to continue to maintain this culture of secrecy and expect that the population is going to tolerate being treated in this manner.

Once the Prime Minister joins the chorus of secrecy, now that he has scaled “the Great Wall of China”, then it would not be too difficult to add him to the list of problem makers. He is now on the site of the wreckage of the Ayers-Caesar disaster. What does he intend to do?

There was resistance in 1998-99 when the proposal of having the JLSC made subject to the scrutiny of Parliament was first broached by then attorney general Ramesh Lawrence Maharaj. There was a rebuttal by the so-called “Six Wise Men” who held the view that such scrutiny could be dangerous for the Judiciary.

Fast forward 18 years and we are presented with a report that says that for the last eight years the constitutionally-mandated reports have not been laid in Parliament. Why?

In previous columns I have raised the issue of how advanced the British system of government is on this subject with judges frequently appearing before parliamentary committees in the House of Commons and the House of Lords.

It will take new leadership in the Judiciary to bring about this required culture change that will embrace scrutiny instead of clinging to the secrecy associated with past habits. The Government appears to be reluctant to offer the society that opportunity, so we are expected to just sit back and take this attitude.

Civil society has to take a stand to demand better from the Judiciary. Scrutiny must become a new normal otherwise the Judiciary will crumble.

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