Judges, AGs and democracy

While this country steadily practises a British Westminster-type of conservative democracy, we are once again witnessing the liberalised, post-Westminster inside of American politics.

The widely-televised broadcast of the US Senate Judicial Committee’s robust interviews with Judge Katanji Brown Jackson, President Joe Biden’s nominee for the nine-member US Supreme Court, aroused excitement over her being the first black woman so nominated.

For judges and some other senior government officials, such public inquiries by US senators are mandatory. In fact, soon after he was elected president in 2020, Biden’s nominee for Attorney General, Merrick Garland, publicly faced the Senate Committee regarding his character, relevant experience, business interests, etc. The population saw what it was getting.

As further testimony of American internal democracy, President Biden publicly told AG Garland, “Remember, you are not my Attorney General, you are the country’s Attorney General.”

Our PM has exclusive power to appoint the Attorney General, naturally leaving him subject to the PM’s instructions. No public questions in Parliament about the proposed AG’s character, business interests, experience or ideological positions. The public then gets what it has not seen. A lot precariously depends on the AG’s personal integrity and professional courage.

Noting this professional dilemma, the 1974 Wooding Constitution Commission Report said: "The Attorney General would be expected to have due regard to maintaining the integrity of the law by ensuring its processes are set in train with conspicuous impartiality. This may put an intolerable strain on the AG and tends in any event to leave his impartiality always open to question.”

To help resolve the “impartiality” problem, the Wooding Commission proposed three offices – a Minister of Legal Affairs to be legal adviser to the Cabinet, a Chief State Counsel (replacing Solicitor General) attached to the Ministry of Legal Affairs, and an AG as an independent public officer to decide on criminal proceedings as well as being adviser to the President, service commissions, boundaries commission, auditor-general and several other national offices.

The commission concluded: “This division of offices should strengthen public confidence in the impartiality of the administration of the law in its executive aspects.”

The last few years saw an AG, articulate and driven, but over-reached into the Constitution, with troubling political consequences.

Given public confidence so much at stake now, the new AG, Reginald Armour, SC, may reflect and review.

The hardline public inquiries of judicial nominee Katanji Brown Jackson are permissible mainly because these senators are elected and subsequently accountable to their constituents. They asked her about her previous rulings as a judge and her role as “anti-racist” activist. Two hot-key issues for Republican senators Lindsay Graham and Ted Cruz were her “soft sentencing” of sex offenders and her alleged advocacy of “critical race theory,” especially as taught in some schools. Cruz hammered the view that critical race theory implies that American institutions are inherently “racist,” there is no “neutrality” in racial matters, etc.

In all this, Judge Brown Jackson calmly responded with logic and professional diligence. This 20-member Senate Judicial Committee contains equal number of Republicans and Democrats. The Democrats will need at least one republican vote.

While the drama over this Supreme Court appointment continues, it may be quite enlightening for us here to witness how a robust, transparent legislature works and the price paid.

US judges, including the Chief Justice, appear for senate scrutiny. Our Chief Justice, however, is appointed by the President after (private) consultation with the Prime Minister and the Leader of the Opposition (Constitution, Section 102). Other judges are appointed by the President, acting in accordance with the (private) advice of the Judicial and Legal Service Commission (Section 104).

When former AG Ramesh Maharaj, SC, piloted the establishment of joint select committees (JSCs) to inquire and report on ministries, municipal corporations, statutory authorities, state enterprises and service commissions, he initially proposed that the Judicial and Legal Service Commission (JLSC) be subjected to such a parliamentary JSC.

It was then pointed out that terms and conditions of judges cannot be so changed. The JLSC, therefore, remained out of parliamentary reach.

Moreover, it remains quite a Caesar-to-Caesar phenomenon that our existing JSCs contain a majority of government members, including ministers. When will we have an emancipated democracy, a more representative and less nominated Parliament?