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."