20 Sep 2009

JJ the Clown Part 1

Chief Justice Archie was right when he spoke out on the Draft Constitution. The response by JJ (John Jeremie, the joker) clearly shows political mischief at its second best, the best being the dotish response submitted after the Law Association condemned his clownish activities in Parliament.

The PNM notes with concern recent developments which have seen the hijacking of the once venerable Law Association by a bunch of political opportunists bent on engaging the duly elected Government in political warfare...”

It is wise to note the words of the Lord Chief justice of England and Wales, at the 16 Commonwealth Law Conference in Hong Kong:

First, because when we speak of judicial independence, and then speak of the rule of law, we tend to make it sound as if we have two separate concepts, when they are as closely intertwined as a mutually dependent and loving couple after many years of marriage, where one simply cannot survive without the other. And second, to remind us that we should never take either judicial dependence or the rule of law for granted.

The places where things have gone wrong include countries which believed that they were mature democracies, where these things did not and could not happen, but they did. But they did.

…There was, of course, no physical intimidation, no threat to security of judicial tenure, none of the extremes of tyranny. But it is the first steps which have to be watched.

...The problem with the phrase “eternal vigilance” is that it appears to focus on the long term. But the focus is the immediate, today, every day. The insidious dangers are no less threatening than the obvious ones, and for the judiciary to acquiesce in the first small, even tiny, steps, may ultimately be terminal.

…In a democratic country all power, however exercised in the community, must be founded on the rule of law. Therefore each and every exercise of political power must be accountable not only to the electorate at the ballot box, when elections take place, but also and at all times to the rule of law. Independent professions protect it. Independent press and media protect it.

Ultimately, however, it is the judges who are guardians of the rule of law. That is their prime responsibility. They have a particular responsibility to protect the constitutional rights of each citizen, as well as the integrity of the constitution by which those rights exist.

…Without independence, and without respect for judicial independence these desirable, indeed elementary facets of a civilised community, are threatened. At the same time, no individual, or group of individuals, nor even any judge, however high his office, has any dispensing power – that is, the power to set aside or disregard the law.

The absence of any dispensing power was, and remains, fundamental to the rule of law. Judges cannot dispense with it. Parliament itself cannot dispense with it. None of our democratic institutions may do so. They are, of course, entitled to change it.

The word, some of you will already have seen, but which you will all increasingly see, is “constitutionality”. It is a word with a great future. In other words, if the executive wished the legislature to pass such an outrageous Act, it should do so in language that was so plain, that the public conscience would be revolted, and the legislation fail, or if passed, the price would be paid at the next election.

It is therefore fundamental that there are no circumstances in which the executive may even appear to tell judges how cases should be decided. Even when the public agrees with the executive at the particular time in relation to the particular point, future public confidence that justice will be done impartially and independently will be eroded. In the end, I firmly believe that the public, even if dissatisfied with an individual decision in an individual case, wants its judiciary to be independent of the executive.

What I am driving at is that the judiciary has an institutional responsibility to ensure that inefficiencies in the legal system do not, as Lord Denning once remarked, “turn justice sour”. In 1215 when King John signed the great Magna Carta it was agreed, “To no-one will we deny or delay right or justice”. Over the centuries, our greatest writers have identified the consequences of inefficiency. In Hamlet, Shakespeare listed it among the “whips and scorns of time”. At the very start of Bleak House, Charles Dickens identified its ability to exhaust finances, patience, courage and hope. Can you imagine anything worse than exhaustion of hope? And if hope is exhausted through the process of litigation, or a long-delayed criminal trial, how can we, as judges, disclaim any responsibility for it?

Yes, all signs point even more strongly to a trotting dictatorship, but one that is slyly being implemented. There is, of course, "no physical intimidation, no threat to security of judicial tenure, none of the extremes of tyranny". But the first steps are already seen, and lately the creeping has become a trot. Pretty soon, we'll be galloping to the Executive Presidency.

The PNM's position that JJ's response was approved by the Speaker is a defence as weak as the bowels in a severe diarrhoea attack. The Speaker is not impartial and is in fact, a sitting member of the PNM. His rulings in Parliament have been so biased that the Opposition has all but given up in getting a fair shake.

The PNM and JJ ought to be thankful that judges are 'reticent' (Anand Ramlogan) and not as outspoken as in England. JJ might be blushing, even with skin of crapaud leather.

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