A Judiciary in disarray (part 1)

Part 1

THERE IS NO gainsaying that an independent and functional Judiciary is seminal to the existence and operation of a democracy. It is the final interpreter of the laws of the country and primarily on such a basis it dispenses justice in disputes between citizen and citizen and citizen and the State.

Its reputation, among other things, rests on the quality of judicial personnel and the objectivity, fairness and impartiality with which justice is administered regardless of the rank, privilege and socio-economic circumstances of litigants.

There is also the imperative that cases before the courts be heard as speedily as possible and judicial decisions announced promptly in keeping with the maxim that justice delayed is justice denied.

In order to carry out its duty properly and maintain its standing and credibility, the Judiciary and, indeed, the administration of justice should enjoy the confidence and respect of the population at large.

In terms of the above criteria, the performance of the Judiciary appears to be wanting. The question for the authorities and the country is what measures can be taken to alleviate the problems confronting the Judiciary in order to improve its performance and reputation.

The fact that the Judiciary is in a fair degree of turmoil is not an issue of recent vintage with the appointment of former Chief Magistrate Marcia Ayers-Caesar as a judge and her subsequent resignation under curious circumstances as well as the conundrum of the 53 part-heard cases over which she had presided as a magistrate. At different times the Judiciary seems to have been embroiled in different challenges which have all affected its reputation and capability.

Twelve years ago in a column in the Sunday Newsday (19/6/2005), I mentioned that one of the assumptions underlying the effective operation of the Westminster model in this country is that there should be “an independent and respected Judiciary.” I stated then:

“With respect to the functioning of the Judiciary in this country, we seem to have arrived at a sorry state of affairs aided and abetted by the actions and agenda of the Executive. The Judiciary is in turmoil and it is characterised by deep- seated animosity and conflicts, whether between the Executive and Judiciary or whether within the Judiciary itself.

“Its independence has been undermined and respect for it has waned. There is public anxiety over the quality of the judicial product. We have had a senior judge acting as Chief Justice advising a political appointee, the Attorney General, to approach the Prime Minister to have the substantive Chief Justice investigated.

“As a result, the mechanism for investigation has been activated. And the latest development which is unprecedented in our history is that a group of judges has actually approached the President to question the application of his discretion to appoint an acting Chief Justice.

“One newspaper has remarked on the judicial crisis as follows: ‘…insiders point to ethnic and political factions, grumblings about appointments to the Bench, infighting and serious concerns about the competence of the Judiciary.’ No doubt, immense damage has been done to the institution.”

Since 2005, there appears to have been little improvement in either the performance of the Judiciary or public confidence in it. The backlog of cases to be heard both by the High Court and the Magistrates’ Courts has increased. The quality of many decisions leaves much to be desired. The unconscionable postponement of cases to unduly facilitate lawyers and the lack of preparedness of prosecution implies that this aspect of the culture of the administration of justice has maintained its virility.

In this scenario of the grave burden on and injustice to litigants, the frequent overseas travel engagements of the current Chief Justice without sufficient justification would appear to be a dereliction of duty.