JUSTICE FRANK Seepersad’s move to inquire into the appointment process for the Court of Appeal raises pertinent questions about the transparency of judicial appointments. The judge, who applied but was not chosen for a position on the court, has reportedly retained silk to represent his interests.
At the very least, this indicates a seriousness of resolve, if not the likelihood of these matters one day being tested in court. Pursuant to the judge’s instructions, Seepersad’s attorney this month lodged a Freedom of Information request seeking the scoring of candidates by members of the Judicial and Legal Service Commission (JLSC), the body that oversees appointments.
Also sought: the constitution of the interview panel; a breakdown of marks for judgments supplied; any merit list produced; the criteria for appointment; and any records of the commission’s deliberations. If these materials are released it would represent a tremendous degree of transparency on the part of the Judiciary. It is worth noting this process relates to the highest judicial officers in the country.
It is not as though we are in the dark ages when it comes to these matters. Chief Justice Ivor Archie’s tenure, though discomfited by the Marcia Ayers-Caesar affair, has been marked by a different approach to appointments, with the process being openly advertised on a regular basis. Previously, the activities of the JLSC were highly confidential.
Even the fact of a vacancy was shrouded with a degree of mystery that on the one hand added to the momentousness of the appointment; on the other opened the door to speculation.
Undoubtedly, there are reasons for secrecy. Judges perform sensitive duties. Their powers are inseparable from the perceptions of the public; their authority comes from both legal instruments as well as an implied social contract in which citizens agree to abide by the rule of law and, therefore, the law’s human personifications.
Letting people know who got what question right, who scored higher than whom, particularly when the candidates are sitting judicial officers presiding over contentious litigation, places a chink in the armor of judges. It undermines their stature, their ability to preside without distraction.
At the same time, there is always something to be said for greater levels of transparency. Our process contrasts sharply with what occurs in bigger countries like the UK where it is spelled out in statute.
Or the US where appointments to the Supreme Court are subject to open hearings and intense scrutiny of the candidate, as occurred in relation to Brett Kavanaugh. It may well be that such a glaring procedure, with the attendant risk of politicisation, would be too jarring for such a small country as this. By the same token, openness might be the best remedy in a society prone to division, suspicion, bad talk, and bad mind.