Anand Ram­lo­gan

?Writ­ing this week­ly col­umn is a bur­den­some hob­by, but a large part of what in­spires me to write it is the ap­pre­cia­tive com­ments and feed­back and con­struc­tive crit­i­cism I re­ceive from read­ers. I have no­ticed that over­seas Tri­nis have a keen and abid­ing in­ter­est in what hap­pens at "home," no mat­ter how long they have set­tled in their new adopt­ed home­land.

They mon­i­tor what's hap­pen­ing and make reg­u­lar con­tri­bu­tions.�

A few years ago, a group of read­ers launched a Web site (www.anan­dram­lo­gan.com), where my col­umn is post­ed and dis­cussed by read­ers. The site ad­min­is­tra­tor is based in Lon­don, and does an ad­mirable job.�A reg­u­lar com­men­ta­tor on this site is "Jumbie," who post­ed the fol­low­ing ex­tract from a speech de­liv­ered by the Lord Chief Jus­tice of Eng­land and Wales, which should be read by every­one con­cerned by the strong speech made by CJ Ivor Archie and AG Je­re­mie's point­ed re­minder that the peo­ple re­quire a more so­phis­ti­cat­ed sys­tem of jus­tice:

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First, be­cause when we speak of ju­di­cial in­de­pen­dence, and then speak of the rule of law, we tend to make it sound as if we have two sep­a­rate con­cepts, when they are as close­ly in­ter­twined as a mu­tu­al­ly-de­pen­dent and lov­ing cou­ple af­ter many years of mar­riage, where one sim­ply can­not sur­vive with­out the oth­er.

And sec­ond, to re­mind us that we should nev­er take ei­ther ju­di­cial de­pen­dence or the rule of law for grant­ed. The places where things have gone wrong in­clude coun­tries which be­lieved that they were ma­ture democ­ra­cies, where these things did not and could not hap­pen, but they did....There was, of course, no phys­i­cal in­tim­i­da­tion, no threat to se­cu­ri­ty of ju­di­cial tenure, none of the ex­tremes of tyran­ny. But it is the first steps which have to be watched.

The first is in­cur­sion by the ex­ec­u­tive in­to im­pro­pri­ety. The first com­pro­mise is by the ju­di­cia­ry with prin­ci­ple. We are all fa­mil­iar with the em­ploy­ee who steals from his em­ploy­er. The most dif­fi­cult time is the first time the hand goes in­to the till. Af­ter that, each suc­ces­sive time is less dif­fi­cult. The prob­lem with the phrase, "eter­nal vig­i­lance," is that it ap­pears to fo­cus on the long term. But the fo­cus is the im­me­di­ate, to­day, every day.

The in­sid­i­ous dan­gers are no less threat­en­ing than the ob­vi­ous ones, and for the ju­di­cia­ry to ac­qui­esce in the first small, even tiny, steps, may ul­ti­mate­ly be ter­mi­nal. In a de­mo­c­ra­t­ic coun­try, all pow­er, how­ev­er ex­er­cised in the com­mu­ni­ty, must be found­ed on the rule of law. There­fore, each and every ex­er­cise of po­lit­i­cal pow­er must be ac­count­able not on­ly to the elec­torate at the bal­lot box, when elec­tions take place, but al­so and at all times to the rule of law.

In­de­pen­dent pro­fes­sions pro­tect it. In­de­pen­dent press and me­dia pro­tect it. Ul­ti­mate­ly, how­ev­er, it is the judges who are guardians of the rule of law. That is their prime re­spon­si­bil­i­ty. They have a par­tic­u­lar re­spon­si­bil­i­ty to pro­tect the con­sti­tu­tion­al rights of each cit­i­zen, as well as the in­tegri­ty of the con­sti­tu­tion by which those rights ex­ist. ...With­out in­de­pen­dence, and with­out re­spect for ju­di­cial in­de­pen­dence, these de­sir­able, in­deed, el­e­men­tary facets of a civilised com­mu­ni­ty are threat­ened.

At the same time, no in­di­vid­ual, or group of in­di­vid­u­als, or even any judge, how­ev­er high his of­fice, has any dis­pens­ing pow­er�that is, the pow­er to set aside or dis­re­gard the law. The ab­sence of any dis­pens­ing pow­er was–and re­mains–fun­da­men­tal to the rule of law. Judges can­not dis­pense with it. Par­lia­ment it­self can­not dis­pense with it. None of our de­mo­c­ra­t­ic in­sti­tu­tions may do so. They are, of course, en­ti­tled to change it. The word, some of you will al­ready have seen, but which you will all in­creas­ing­ly see, is "con­sti­tu­tion­al­i­ty." It is a word with a great fu­ture.

It is, there­fore, fun­da­men­tal that there are no cir­cum­stances in which the ex­ec­u­tive may even ap­pear to tell judges how cas­es should be de­cid­ed. Even when the pub­lic agrees with the ex­ec­u­tive at the par­tic­u­lar time, in re­la­tion to the par­tic­u­lar point, fu­ture pub­lic con­fi­dence that jus­tice will be done im­par­tial­ly and in­de­pen­dent­ly will be erod­ed. In the end, I firm­ly be­lieve that the pub­lic, even if dis­sat­is­fied with an in­di­vid­ual de­ci­sion in an in­di­vid­ual case, wants its ju­di­cia­ry to be in­de­pen­dent of the ex­ec­u­tive. What I am dri­ving at is that the ju­di­cia­ry has an in­sti­tu­tion­al re­spon­si­bil­i­ty to en­sure that in­ef­fi­cien­cies in the le­gal sys­tem do not, as Lord Den­ning once re­marked, "turn jus­tice sour".

At the very start of Bleak House, Charles Dick­ens iden­ti­fied its abil­i­ty to ex­haust fi­nances, pa­tience, courage and hope. Can you imag­ine any­thing worse than ex­haus­tion of hope? And if hope is ex­haust­ed through the process of lit­i­ga­tion, or a long-de­layed crim­i­nal tri­al, how can we, as judges, dis­claim any re­spon­si­bil­i­ty for it? A more so­phis­ti­cat­ed sys­tem of jus­tice can­not be achieved by a gov­ern­ment which pri­ori­tis­es un­nec­es­sary mega-projects over the needs of a func­tion­ing sys­tem of jus­tice, as il­lus­trat­ed by the mod­est grant giv­en to the ju­di­cia­ry.