8 Dec 2013

Don’t beat up the Judiciary

The Cap has not written much on Rock issues for a while. This morning I was suddenly moved by Martin Daly’s Editorial in TT Express 2013-12-07. The following is my response:

A judiciary whose 'air supply' is so severely limited by the administrative arm of government, that it cannot reasonably demonstrate its independence, is a failed judiciary. By extension there is a failure of democracy, leaving an imbalance of the three 'powers'.

Historically the Judiciary in T&T has been abused. There is hard evidence of this. In 2009, the Judiciary requested $349M for the running of the entire court system... the Manning government granted a whopping $42.5 M. But in the same year a $65M down payment on a private jet costing some $300M, was not a problem.

I would not be surprised if similar abuse has persisted. We know governments change, but things remain more or less the same - despite all the drum-beating and promises to serve the people, near election time. I sometimes have to wonder if they were thinking 'serve the people rum and roti'.

Underperformance of the court system and delays were partially addressed by CJ Archie in his address at the opening of the 2014 law term. But one doesn't need to be a legal scholar to discern that he was just doing his best with the scraps thrown to his judiciary by the administrative arm of government. Yes - his suggestions outlined were good, and on par with changes in modern English practices. But he still has a problem for his judiciary - and he is indeed in a very difficult position because he cannot be seen to be playing politics or battling with the administrative arm.

It is very sad now that the judiciary is wearing egg on the face, for a failure of governance emanating from elsewhere.

CJ Archie needs to get out of the box - and think outside of the box. He and his closest allies need to consult with the masters of judicial strategy in places very far away. Do not rush into making comment, which will appear defensive - or lead into a political battle.

The Rt Hon Lord Judge at the 16TH COMMONWEALTH LAW CONFERENCE, HONG KONG 9TH APRIL 2009, began his speech by saying, "No one who had any reservations about the principle of judicial independence would be here. Indeed it has been the constant subtext of many of the discussions. So to begin with, at any rate, I am simply repeating what we all know. However, it bears constant repetition. 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. It would indeed be unwise to assume that judicial independence is inviolable. There are among us today men and women of the Commonwealth, and in one particular case men and women who are no longer of the Commonwealth, who have direct experience that it is not. And in the light of their experiences, the rest of us have humbly to recognise how fortunate we all are. Nevertheless, eternal vigilance is a necessary price, worth paying, not exclusively by judges and lawyers, encased within that mythical ivory tower so beloved of pundits and commentators, who do not understand that our daily diet reveals all we need to know about the sadnesses and tribulations of humanity, and its capacity for good and evil, but also a responsibility to be accepted by a free and independent media, as well as an alert community. ...." Read (click): full speech.

Note carefully his words 'eternal vigilance' - and you can be sure he was not implying mere vigilance. When English law lords speak, you can bet that their words 'track' much deeper.

The electorate now needs to ask itself certain questions. I can't give you a full list. But perhaps the first round should be, "What about Anand Ramlogan - the people's champion on Constitutional Law and 'rights' etc - who when a columnist pre-election would have been fighting fiercely to put right all the imbalances we see today? What has been the influence of such champions of democracy on all arms of government? Can you see such influence - can you feel it?"

These are dark and dangerous times. I don't think CJ Archie is a bad fella. I think now more than ever he needs to know that the electorate will not just beat him up (figuratively speaking, of course). We need the electorate to demonstrate much depth in their perceptions. The electorate needs to look further and deeper than just at the surface of the Courts and Judicial system. Look for the root causes of the whole mess. But whatever you do, do not sacrifice the judiciary - they are your true friends. Join the judiciary in that deep concept of 'eternal vigilance' - but just don't look on - that is not what this 'eternal vigilance' means.

Additional reading:

  1. Judiciary – not a stray dog – excellent blog by Jumbie.
  2. What Archie did
  3. The Rule of Law
  4. Excerpts from a speech
  5. What price Justice?  - from 2009.
  6. Doing it right, wrong all the time
  7. Judicial Emasculation  - predicted at this blog in 2008!!
  8.  Insidious sneaky, sly, underhanded  - political attack on the judiciary – 2008.

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