Prof Ramesh De­osaran

The con­tro­ver­sial "ju­di­cia­ry to pol­i­tics" tran­si­tion by Her­bert Vol­ney–un­prece­dent­ed in form and swift­ness–could be de­scribed as a bless­ing in dis­guise. It com­pels us, the Chief Jus­tice, Prime Min­is­ter and Leader of the Op­po­si­tion in par­tic­u­lar, to con­sid­er a phe­nom­e­non that will like­ly grow in com­ing years. That is, not on­ly about judges or mag­is­trates leav­ing the bench to en­ter elec­toral pol­i­tics, but al­so about politi­cians who en­ter the ju­di­cia­ry through the Ju­di­cial and Le­gal Ser­vices Com­mis­sion head­ed by the Chief Jus­tice him­self. Tak­ing pre-re­tire­ment leave, an­oth­er ju­di­cial of­fi­cer, Se­nior Mag­is­trate Ram­raj Har­riper­sad, al­so de­clared his po­lit­i­cal can­di­da­cy. He ex­plained that he chose the elec­toral in­ter­ven­tion be­cause he "loves to see things go right." Vol­ney him­self, more than any oth­er judge in our his­to­ry, has made one com­plaint af­ter an­oth­er, one crit­i­cism af­ter an­oth­er about how the "crim­i­nal jus­tice sys­tem has col­lapsed," about how the ju­ry sys­tem has "grown per­verse," about the dis­tress caused by de­lays in court tri­als, etc, etc.

Such ap­par­ent­ly civic-mind­ed pro­fes­sion­als like Har­riper­sad and Vol­ney no doubt feel, giv­en their ex­pressed frus­tra­tions with the ju­di­cia­ry, that they can put things right as elect­ed politi­cians. Per­haps they may have a sur­prise or two in this re­gard. But in the CJ's view, this is not a mat­ter about civic-mind­ed­ness or com­pe­tence. It is about ethics and pub­lic per­cep­tion. How­ev­er, some­thing more con­crete is re­quired now since this dilem­ma will very like­ly be faced again. For ex­am­ple, what about "tem­po­rary judges"–quite a large group now–who sub­se­quent­ly re­vert to pri­vate prac­tice and then en­ter the po­lit­i­cal are­na? There is a lot of clean­ing up to do. Let us see. There is now no law which for­bids ei­ther Har­riper­sad or Vol­ney from en­ter­ing pol­i­tics. But what about go­ing from pol­i­tics in­to the ju­di­cia­ry. When Patrick Man­ning was con­test­ing the po­lit­i­cal lead­er­ship of the PNM, Dr Ae­neas Wills fought him, lost and was soon there­after made a High Court judge.

Gillian Lucky was a Mem­ber of Par­lia­ment (2002-2007), ran as a Con­gress of the Peo­ple can­di­date in the 2007 elec­tion, lost, then spent some time prac­tic­ing both pri­vate­ly and for the State while al­so writ­ing a po­lit­i­cal­ly-dri­ven news­pa­per col­umn, no doubt an ex­pres­sion of pub­lic ser­vice. Last year she was ap­point­ed a tem­po­rary judge, then had it re­cent­ly re­newed. About one month ago, a news­pa­per sto­ry high­light­ed Jus­tice Lucky as a "pos­si­ble can­di­date" for San Fer­nan­do West." This might have em­bar­rassed Jus­tice Lucky but there was no de­nial, and even so, did the CJ in­quire in­to the ve­rac­i­ty of this news­pa­per re­port? Re­mem­ber too, the very af­fa­ble Jus­tice An­tho­ny Lucky, a sit­ting judge, ac­cept­ed a PNM nom­i­na­tion to run for Pres­i­dent. Be­fore all that, in the Na­tion­al Al­liance for Re­con­struc­tion (NAR) gov­ern­ment, Jus­tice Am­ri­ka Ti­wari-Red­dy was a Sen­a­tor, quite an able one at that, but af­ter some time, was al­so ap­point­ed a judge. We are now aroused by the ex­it point, that is, two ju­di­cial of­fi­cers leav­ing the bench to fight the PNM.

Be­fore we con­sid­er what should re­al­ly be done about such sit­u­a­tions, let us hear what the VIPs have to say. First, at the PNM's Pe­nal meet­ing last Wednes­day, PM Man­ning reg­is­tered his com­plaints in the form of two ques­tions: "What de­ci­sions of these two gen­tle­men have been in­flu­enced by their as­so­ci­a­tion with the Unit­ed Na­tion­al Con­gress...I ask the ques­tion, has ju­di­cial in­de­pen­dence been com­pro­mised?" On that same Wednes­day, Chief Jus­tice Ivor Archie, through a two-page press re­lease, and quite du­ti­ful­ly, made two crit­i­cal points for the pub­lic ben­e­fit. First­ly, he said that "it would be whol­ly im­prop­er" for any sit­ting judge to hold any pri­vate dis­cus­sion with a po­lit­i­cal par­ty so as to en­ter ac­tive pol­i­tics. Sec­ond­ly, he want­ed "to as­sure the na­tion­al com­mu­ni­ty of his unswerv­ing com­mit­ment and that of the judges of the Supreme court to an in­de­pen­dent and im­par­tial ju­di­cia­ry." But we have heard such as­sur­ances be­fore, sev­er­al times, which tells us how dif­fi­cult the prob­lem is to re­solve.

Not on­ly about who leaves the ju­di­cia­ry to fight elec­tions, but al­so for a broad­er un­der­stand­ing, who leaves pol­i­tics to en­ter the ju­di­cia­ry. In some coun­tries, Eng­land in par­tic­u­lar, there are rules or strong tra­di­tions about such things. For ex­am­ple, no Min­is­ter can ac­cept a pri­vate or pub­lic di­rec­tor­ship less than two years af­ter leav­ing of­fice. To cut a long sto­ry short, the time has cer­tain­ly come for the Ju­di­cial and Le­gal Ser­vices Com­mis­sion, if not the Par­lia­ment it­self, to es­tab­lish a writ­ten set of prin­ci­ples and cri­te­ria for per­sons leav­ing pol­i­tics to en­ter the ju­di­cia­ry, and sec­ond­ly, for per­sons leav­ing the ju­di­cia­ry to en­ter elec­toral pol­i­tics. This, let me em­pha­sise, has noth­ing to do with the com­pe­tence of the per­sons in­volved. In fact, as UNC po­lit­i­cal leader Kam­la Per­sad-Bisses­sar said last Wednes­day, "Jus­tice Vol­ney would be leav­ing all his years of study, his ded­i­ca­tion to the ju­di­cia­ry, the ben­e­fits ac­crued from his po­si­tion...sim­ply be­cause he chose to put T&T be­fore his own needs."

Now per­haps in all fair­ness, the same thing could be said of those who leave pol­i­tics to en­ter the ju­di­cia­ry. What all this con­tro­ver­sy means is that there is an ur­gent need to set up some rules of en­gage­ment and not leav­ing it as the Chief Jus­tice, per­haps un­wit­ting­ly, seems to have done-hang­ing in the air. For ex­am­ple, the CJ's re­lease said in part: "The Chief Jus­tice recog­nis­es that the is­sue of a sit­ting judge en­ter­ing pol­i­tics is one of pub­lic con­cern and there­fore deems it nec­es­sary to emha­sise the prin­ci­ple by which judges ought to gov­ern their con­duct in this re­gard." What "prin­ci­ples?" The an­swer, in the CJ's view of course, aris­es in the his next state­ment: "It is vi­tal that ju­di­cial of­fi­cers in re­al­i­ty and in per­cep­tion re­main in­de­pen­dent of po­lit­i­cal par­ties and the cut and thrust of na­tion­al pol­i­tics."

"The per­cep­tion of im­par­tial­i­ty must be pre­served," he em­pha­sised. But to re­ly on­ly on pub­lic per­cep­tion is cer­tain­ly not enough. There must be es­tab­lished rules, writ­ten cri­te­ria, es­pe­cial­ly in a coun­try like this, both for en­ter­ing the ju­di­cia­ry and for leav­ing the ju­di­cia­ry as far as�elec­toral pol­i­tics is con­cerned. Right now there are none and this new­ly dis­cov­ered­po­lit­i­cal gate­way must be bet­ter reg­u­lat­ed, con­sid­er­ing of course Sec­tions 4 and 5 of the Con­sti­tu­tion where such things as free­dom of as­so­ci­a­tion, free­dom of speech, of move­ment and due process are all en­shrined. Notwith­stand­ing this, a Code of Ethics for the ju­di­cia­ry should con­tain, for ex­am­ple, at least a two-year pe­ri­od be­tween par­ti­san po­lit­i­cal ac­tiv­i­ty and ju­di­cial en­try, and a sim­i­lar two-year space be­tween the ju­di­cia­ry and en­try in­to po­lit­i­cal ac­tiv­i­ty. But then an­oth­er is­sue aris­es in this re­gard.

Is it bet­ter to re­sign than to re­tire from the bench? Af­ter all, it re­quires ten years be­tween ju­di­cial re­tire­ment and en­ter­ing law prac­tice. The rules say noth­ing about en­ter­ing or not en­ter­ing pol­i­tics af­ter re­tire­ment. The pre­vail­ing con­cern is about "sit­ting judges." So once again, the way out of this dilem­ma is not to de­pend so much up­on pub­lic per­cep­tion or ver­bal as­sur­ances of ju­di­cial in­de­pen­dence. We need a reg­u­la­to­ry frame­work, with writ­ten rules and part of the ju­di­cial con­tract. There is of course an­oth­er route. PM Man­ning has more than once ex­pressed a pref­er­ence for the Ju­di­cia­ry or its rep­re­sen­ta­tive to ap­pear be­fore a Joint Se­lect Com­mit­tee of Par­lia­ment hop­ing that such a trans­par­ent ex­er­cise might re­al­ly at­tract pub­lic con­fi­dence and pro­vide an ex­change of views about the pol­i­tics-ju­di­cia­ry tran­si­tion.

I sym­pa­thise with Law As­so­ci­a­tion Pres­i­dent Mar­tin Daly when he says that his As­so­ci­a­tion prefers to "stay out" of the Vol­ney con­tro­ver­sy since the mat­ter has now be­come a "po­lit­i­cal foot­ball." How­ev­er, as a for­mer tem­po­rary judge, Daly him­self has de­scribed Vol­ney's "swift de­scent" as pos­si­bly caus­ing a con­se­quent "loss of pub­lic con­fi­dence in the ju­di­cia­ry." The pub­lic is now left to won­der, he said with due re­straint, how many oth­ers like Vol­ney may be in the ju­di­cia­ry. The Law As­so­ci­a­tion con­tains sharply di­vid­ed but quite le­git­i­mate po­lit­i­cal loy­al­ties. But at the same time, giv­en its func­tions un­der the Le­gal Pro­fes­sion Act and es­pe­cial­ly its Code of Ethics, Mr Daly and his Coun­cil may well wish to con­sid­er that they, more than most, can act as a prop­er ref­er­ee in this game of "po­lit­i­cal foot­ball." Af­ter all, giv­en the well-known dy­nam­ics of this coun­try's pol­i­tics, for­mer judge Her­bert Vol­ney may well be this coun­try's next At­tor­ney Gen­er­al and as such "Head of the Bar."