A Judiciary in disarray (part 4)

Part 4

Transparency is a desired attribute of governance in a functioning democracy because it boosts public confidence in the system of government and thus makes decisions more acceptable.

Transparency also provides a deterrent to arbitrary and self-serving decisions, thereby improving the quality of decision-making. Information is provided through which members of the public can question the decision-makers and seek justification for their action. Transparency therefore facilitates that other significant attribute — accountability.

There are, of course, instances when limits to transparency may be justified in pursuit of the larger public interest. There will be conflicting views on what should be the limits of transparency for the proper operation of the judicial system in TT as well as the process by which judges and magistrates are selected.

In the US, for example, there exists the tradition of very significant openness where judges must subject themselves to the scrutiny and approval of electors in their respective districts and, for the appointment to the Supreme Court, prospective appointees must face confirmation hearings by a Senate committee.

In the case of TT, there is the view that the mechanism and criteria by which judges and magistrates are selected are shrouded in undue secrecy. Our main concern is that the people so appointed are able to satisfactorily fulfil the demands of their office.

According to the Constitution of TT, the responsibility for appointing judges (and presumably magistrates) rests with the Judicial and Legal Service Commission. Sec 104 (1) of the Constitution states: “Judges, other than the Chief Justice, shall be appointed by the President acting in accordance with the advice of the Judicial and Legal Services Commission.”

The general public is blissfully unaware of the criteria used in making these decisions for appointment. Sec 105 goes on to state: “A person shall not be appointed as a judge or to act as a judge unless he has such qualifications for appointment as may be prescribed.”

I myself am not aware of what these prescribed qualifications are and so too would the vast majority of citizens. If these were known and seen to be scrupulously adhered to, then it would go some way in boosting the public’s confidence in the Judiciary.

In the absence of such knowledge publicly shared, there is room for speculation. Has affiliation with the establishment played a key role in the appointment? To what extent has patronage been involved? Is the philosophical and socio-cultural perspective of the appointee such that there would be assurance that justice would be dispensed evenhandedly?

A few years ago, I alluded to the subject as follows: “Every week it seems a new judge or magistrate is appointed and the public is at a loss to know who these people are and whether they have satisfied the minimum qualifications for the position… Therefore a measure of public transparency is required in that the minimum qualifications to be attained by judges and magistrates should be published in the media for the benefit of the public, whether in terms of education, background, experience and character. It is merely one small step towards more open government.

As at present, one is required to place absolute faith in the judgment, discretion and good intentions of the members of the Judicial and Legal Services Commission.” Recent history is relevant.

As regards appointments to the Caribbean Court of Justice (CCJ), a Caricom document has stated (Newsday 26/4/17): “….judges appointed to the CCJ are evaluated on the basis of wide-ranging criteria that include experience, high moral character, intellectual and analytical ability and an understanding of people and society.” The bar is set very high indeed but how is the public to be assured that these criteria have been satisfied. It would be enlightening to know if the JLSC of TT has been guided by the above criteria.