9 Jun 2017

When an argument goes wrong

Image result for Dr Emir Crowne:

Judicial independence is under attack in this country. It is under attack by the very bar that prides itself on independence and self-governance. That stinging irony aside, these attacks should not be taken lightly.

The Supreme Court of Canada described judicial independence as: “[the] lifeblood of constitutionalism in democratic societies… An independent judiciary is absolutely necessary to ensure that the power of the state is exercised in accordance with the rule of law and the provisions of [the] Constitution.

“In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals… Judicial independence further represents the cornerstone of the common law duty of procedural fairness, which attaches to all judicial, quasi-judicial and administrative proceedings, and is an unwritten principle of the Constitution.

“The twin aspects of judicial independence and impartiality are relevant to [the current matter]. The first is the requirement that the judiciary function independently from the executive and legislative branches of government… The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice.”

(Application under s. 83.28 of the Criminal Code (Re), [2004] 2 SCR 248—internal citations omitted).

Judicial independence essentially means that judges and other judicial officers are free to exercise the functions of their office without fear of reprisal, retribution or termination. The elements of such independence are security of tenure, financial security and administrative independence. Each of these elements is essential to ensure that democracy itself functions without undue influence from the State, unsuccessful litigants and third parties—like a select group of lawyers.

Indeed, the Law Association can pass any motion it wants. It matters not. The motions are purely symbolic; and, in a sense, ‘miss the point’.

As members of the legal profession, you cannot tout the importance of an independent judiciary while at the same time passing motions for the removal of judges. It is an affront to the very principles that a self-regulated bar—in a democracy no less—is supposed to stand for.

The above is a ‘letter to the editor’, published in the Daily Express of 8/6/17, by Dr Emir Crowne.

The writer has made two fundamental flaws in his thinking that – given his impressive qualifications and experience – are almost unforgivable.

First, there is the implied condition that the Chief Justice is an ordinary judge, and that it is wrong to remove him from his position. By implying this condition, Crowne is conflating the position of the Chief Justice with the position of the Chairman of the Judicial and Legal Services Commission. While they may be the same person, and that person is the Chairman because he is the Chief Justice, they are two separate offices. They both serve different functions, and in no way should be conflated or confused with the other. This is quite an elementary mistake and makes it quite obvious that if you start an argument from a false premise, you will never arrive at a true answer. Obviously, there’s a lot more I can write on this but I leave it up to readers to do their own research.

Second, there is the other elementary mistake of ascribing political motives to legal actions. There is a prima facie case of the JLSC being unconstitutionally constituted. Several reasons have been brought up in the public domain for this, one of which is that two of the retired judges are over the prescribed age (http://bit.ly/2sGkbGU).

Cases are assigned to judges arbitrarily, and if two cases are linked they assigned to the same judge (paragraphs 6 – 12 here: http://bit.ly/2sRW9rD). Implying that the judge is politically motivated to find in favour of the Opposition is almost contempt of court. It is impugning the character and reputation of the judge. Crowne ought to know better.

Sadly, their very independence means that judges are not able to comment in public regarding any matters, not even to defend themselves. They cannot even be seen to be biased in any manner (remember Sherman McNicolls and the Panday matter?). While a judge is entitled to vote, for example, he cannot be seen to be allied with any political party, neither can he even comment on which party he supports.

I want to address the issue of the bar attacking the judiciary. The bar has in no way attacked the judiciary but has expressed reservations in the conduct of the Chairman of the JLSC (who happens to be the Chief Justice). The fact that the Chairman, the JLSC and indeed the Chief Justice did not conduct due diligence in the matters that brought the judiciary into disrepute is indeed casting a stain upon the JLSC and the office of its chairman, and the office of the Chief Justice. You will notice that I have treated them as separate entities, which indeed they are. The bar was and is entitled to hold its titular head to account.

I also want to address the issue of “select group of lawyers”, which the writer has used to imply that such a group of lawyers is politically motivated… apparently consistently. I personally do not see it this way – and before I continue, I confess I hold no brief for these lawyers, and in most cases personally dislike them – but what I see is a group of lawyers who are willing to stand up for constitutional defence. Many of these lawyers have built their reputations on constitutional and human rights grounds, so it is no surprise therefore that anyone with complaints in these areas will seek them out. The fact that they are aligned with one particular political party may or may not be coincidence but that is certainly their right. In the same manner, there are lawyers are aligned with the other political party, but no one seems to notice.

The point I am trying to make is that these lawyers are making important changes to the law, especially where the administrative arm of the government is abusing its powers. Crowne of all people should appreciate the balance of the separation of powers and the rule of law. the rule of law is a concept many people do not understand even after many years of legal experience, and sadly, I see here that Crowne falls into that bracket.

My final point is that anyone/everyone has the right to stop abuse of power, constitutional shenanigans, and blatant disregard for the law/rule of law, as can be seen from the recent Privy Council judgement in favour of R Dumas.

Keep in mind the final arbiter will be the Privy Council. By then, the web will be significantly more tangled, as if the PC does rule the JLSC is unconstitutional, how then could it justify appointing new judges? The common-sense answer would be to have waited for that final decision.