ANAND BEHARRYLAL QC
THE JUDGMENT of the Privy Council is worthwhile reading for everyone in TT. It is of the utmost importance that people should not assume what the decision means or rely solely on press releases by the Chief Justice (CJ) or the Law Association of TT (LATT), which are necessarily selective.
The office of CJ is one of the important public offices in any Commonwealth democracy. Any judge who assumes this post is endowed with huge constitutional responsibility and privilege.
As such the office holder is expected to be a person of great knowledge and experience in the law (usually a former Senior Counsel and senior judge), great honour and integrity in their professional and personal life, and great courtesy and fairness in their demeanour, in the exercise of their judicial and managerial functions.
LATT is the professional body for attorneys and is empowered by Parliament to promote, maintain and support the administration of justice and the rule of law. In the Code of Ethics, express duties imposed on attorneys include that:
“(2) An attorney-at-law shall encourage respect for the courts and the judges.
“(3) An attorney-at-law shall support judges and magistrates against unjust criticisms.
“(4) Where there is ground for complaint against a judge or magistrate an attorney-at-law may make representation to the proper authorities and in such cases, the attorney-at-law shall be protected.”
Adopting a common-sense approach, in light of the powers of LATT and the duties of attorneys, where LATT is in possession of material that may suggest impropriety on the part of a judge, let alone the chief judge, it has an equal duty to, firstly, consider with great care the nature of such material and, secondly, only if it reveals clear grounds for complaint to make such complaint.
Such careful consideration is demonstrated only by carrying out a forensic examination of the available material before expressing or publishing any view; sensibly done by committee to ensure a broad range of viewpoints.
It is not consistent with democratic concepts of transparency and accountability for LATT to be muzzled or prevented from doing so, and in the final analysis this is all the Court of Appeal and Privy Council have decided.
Of greater moment is the role of LATT. The course it has taken is unprecedented in TT. It has in this one matter come into its own as an organisation that is more than a mere professional body for lawyers.
It has stepped up to the plate where the individual citizen, attorney or judge would not have been able to do so in a very important public matter, and is to be congratulated. This bodes very well for future public interest actions LATT could take, should the need arise.
It has also fired a warning shot across the bows of the judiciary, that the days of it being completely immune from formal, robust and professional criticism are gone.
What now of the CJ? Of note, the CJ launched the judicial review against LATT that has so enthralled the public since the press started publishing allegations. With hindsight the CJ’s judicial review has only achieved delay in the process LATT was undertaking, which has resulted in much more publicity than might have occurred if the CJ had taken no objection – and he had every right to decline to participate and ignore the process.
That said, whatever action flows from LATT’s decision in due course, of critical importance is that LATT cannot decide the removal of a CJ. The latter can only be done pursuant to Section 137 of the Constitution. This is a strict process where the rights of CJ are protected and where then, as now, his integrity and innocence are and must be presumed.
Anand Beharrylal is the first TT attorney to be made QC since 1976. He lives and practises in London, UK