Prof Ramesh Deosaran writes a weekly column for the Newsday.
Integrity. This is described as “moral uprightness, honesty; wholeness, soundness,” (Concise Oxford). Central to the current, prolonged exchanges over the judiciary is this matter of integrity. Judges are widely respected, enjoying tax-free salaries, rather immunised status, etc. Even more than university degrees, integrity is preciously required of those that govern us, make promises, keep, regulate or manage our money, hold our confidences, or listen to our confessions.
There is a triangulated trust we must have in police, lawyers and judges (including magistrates). As much as each is a guardian of our safety and liberties, of democracy itself, each can do great damage when integrity – moral uprightness and honesty – is sacrificed for mercenary, prejudicial or self-serving interests. Precious institutions become damaged, sometimes beyond repair.
We get angry at the corrupt politician, we scorn dishonest lawyers, we show contempt for the crooked police, even spurning the shady businessman. But when a judiciary loses integrity, when a judge loses moral uprightness or honesty, it is the end. Where else can you go? Judges establish the line that on most occasions separate the good from evil. It is therefore important that the process used to establish the required judicial integrity, or loss of it, be as fair and rigorous as possible.
To help ensure integrity of process, our constitution (Sections 110, 111) created a Judicial and Legal Service Commission (JLSC) with the Chief Justice as head, and whose function is to appoint, promote, discipline or initiate removal of judges. There is a separate, more intricate process for the Chief Justice’s removal. This generally comes from evidence put before the Prime Minister, who then advises the President to establish a tribunal who, after inquiry, recommends to the President who then acts on the advice of the Prime Minister (Section 137).
In other words, the Chief Justice enjoys high-level protection in office, mainly because it is assumed that he or she is a person of such high integrity, that the allegation must be evidentially tight and the process rigorous. If the Chief Justice betrays that trust, then the Constitution must speak quickly and decisively.
It is no secret that over the years the population has been losing trust and confidence in our national institutions – from Parliament, service commissions, police service, legal profession, the media – even the judiciary. This means that those at the top must work hard to help restore that loss. The stereotypic tragedy is while the entire institution is condemned, there are still some good men and women of integrity inside. Unfairly carrying the blame too.
Given the population’s mood now, the judiciary needs to be sanitised in some important respects. After this furious public discourse over the Chief Justice and the Judiciary, some lessons should be learnt such that some changes may help, even if they cause discomfort as changes often do. Some judicial space must be surrendered in the public interest.
(1) The allegation of secrecy and even favouritism should be cured by having the judges selected by the Judicial and Legal Service Commission appear in private before a mixed, carefully-chosen parliamentary joint select committee. This view might well cause some unease, but it is high time we prepare to be brave and bold to democratise our “colonial institutions” in the name of a more people-oriented political independence.
Archbishop Emeritus Joseph Harris recently said so.
(2) Judges should declare their assets to the Integrity Commission. The original integrity legislation, passed with special majority, required elected members of parliament, senators (including independent senators), judges, magistrates, permanent secretaries, etc, to declare their assets so that with such transparency and accountability, the population will have increased public trust and confidence in the relevant institutions.
The inclusion of judges in this list faced disfavour in the judiciary and so was taken to court on the general premise that “the terms of service (of a judge) shall not be altered to his disadvantage after his appointment.” (Section 36). Obviously facing a dilemma, the judge ruled that judges should not declare their assets. But really, in present circumstances, how would a judge declaring his assets be “a disadvantage?” The then attorney general did not appeal. Given the option for alternative interpretation, he should have in the public interest, if only to re-affirm the integrity of the many good judges we have.