?Dou­glas Mendes

Dur­ing the course of the last week, we wit­nessed the ap­point­ment of one judge to the High Court and three judges to the In­dus­tri­al Court.There was at first a brew­ing cam­paign to up­set the ap­point­ment of Madam Jus­tice Gillian Lucky, but in the end it did not take wing. The com­plaint was that she held strong an­ti-gov­ern­ment views which were on dis­play in her reg­u­lar week­ly col­umn and tele­vi­sion pro­gramme.

It is iron­i­cal that the ap­point­ment of the three judges to the In­dus­tri­al Court gen­er­at­ed nary a com­ment and prob­a­bly went un­no­ticed by many, when there is much more rea­son to fear that an in­dus­tri­al court judge might be sus­cep­ti­ble to ex­tra­ne­ous in­flu­ence.

It is al­ways ap­pro­pri­ate to be­gin any dis­cus­sion of the in­de­pen­dence of judges by mak­ing it clear that noth­ing un­to­ward is be­ing sug­gest­ed about the per­son­al in­tegri­ty of any judge who might in­di­rect­ly be the sub­ject of dis­cus­sion. And so it is in this case, ex­cept that, in the case of Jus­tice Lucky, there is every rea­son to think she will dis­charge her du­ties with the same courage and in­tegri­ty she dis­played as a politi­cian, a jour­nal­ist, an at­tor­ney and as head of the Po­lice Com­plaints Au­thor­i­ty.

In a per­fect world, a judge should have no par­tic­u­lar strong view on any po­lit­i­cal par­ty, or about any par­tic­u­lar group of peo­ple, re­li­gion or phi­los­o­phy. So sani­tised, we as­sume she would be en­abled to fo­cus on the law and the law alone.But we don't live in that imag­i­nary world and we don't ex­pect ju­di­cial ap­pointees will be emp­ty ves­sels. In­deed, we ex­pect they will have had the or­di­nary ex­pe­ri­ences of life which would bet­ter place them to un­der­stand the hu­man prob­lems they are called up­on to re­solve.

It is there­fore to be ex­pect­ed that every sit­ting judge will have views of vary­ing in­ten­si­ty about the com­pet­ing po­lit­i­cal par­ties or the per­for­mance of the sit­ting gov­ern­ment, ei­ther when they were first ap­point­ed, or de­vel­oped over the course of their ju­di­cial ca­reers. Judges are en­ti­tled to vote and there­fore must form their own as­sess­ment of the com­pet­ing can­di­dates.

The dif­fer­ence be­tween the or­di­nary judge and Jus­tice Lucky is that she was a pub­lic fig­ure whose views were well known be­fore her ap­point­ment, while the run-of-the-mill judge will have been plucked out of the rel­a­tive anonymi­ty or ob­scu­ri­ty of the le­gal pro­fes­sion to serve on the bench.

The im­por­tant thing about judges of the High Court is that, once ap­point­ed, they en­joy a high de­gree of fi­nan­cial se­cu­ri­ty and se­cu­ri­ty of tenure which in­su­late them from the in­flu­ence of peo­ple with pow­er. Thus, they can on­ly be re­moved from of­fice for good cause and by a fair­ly de­tailed, com­pli­cat­ed and in­de­pen­dent process; their re­mu­ner­a­tion pack­ages can­not be al­tered to their detri­ment; their po­si­tions can­not be abol­ished; and in­creas­es in their ben­e­fits are rec­om­mend­ed by an in­de­pen­dent Salary Re­view Com­mis­sion.

They are there­fore quite free to jet­ti­son any pre­vi­ous al­liances they may have had with­out fear of reper­cus­sion. And to the ex­tent that they may have re­cent­ly ex­pressed strong views on a par­tic­u­lar par­ty, best prac­tice dic­tates that they de­cline to hear any case touch­ing up­on that par­ty's con­cerns.

So there nev­er was any re­al threat that Jus­tice Lucky's past in­volve­ment in the po­lit­i­cal life of the coun­try would se­ri­ous­ly af­fect her abil­i­ty to dis­charge her func­tions as a judge fair­ly and im­par­tial­ly.A judge of the In­dus­tri­al Court, on the oth­er hand, op­er­ates in an en­tire­ly dif­fer­ent and fun­da­men­tal­ly less se­cure en­vi­ron­ment. She is ap­point­ed, in ef­fect, by the Cab­i­net, for fixed pe­ri­ods of be­tween three and five years. The de­ci­sion whether her terms of of­fice will be re­newed is al­so made by the Cab­i­net.

Cru­cial­ly, the Gov­ern­ment is fre­quent­ly a par­ty to a pro­ceed­ings be­fore the court, ei­ther di­rect­ly as an em­ploy­er of pub­lic ser­vants, or in­di­rect­ly through statu­to­ry au­thor­i­ties, such as WASA and T&TEC, or through state-owned com­pa­nies, such as Petrotrin.

The end re­sult is that judges of the In­dus­tri­al Court are called up­on to ad­ju­di­cate on dis­putes in which a par­ty to the pro­ceed­ings is ef­fec­tive­ly the per­son who de­ter­mines whether their tenure as judges will con­tin­ue. It is not hard to ap­pre­ci­ate that the in­tegri­ty of the most coura­geous of judges will be test­ed when she is called up­on to rule against the per­son who has her fu­ture in their hands.

The in­her­ent in­se­cu­ri­ty of In­dus­tri­al Court judges and their ap­par­ent lack of struc­tur­al in­de­pen­dence has been re­marked on prac­ti­cal­ly on a year­ly ba­sis by the pres­i­dent of the court. Trade unions have fre­quent­ly spo­ken about it and called for a change in the law to vest all pow­er of ap­point­ment and re-ap­point­ment in the hands of the Ju­di­cial and Le­gal Ser­vice Com­mis­sion, which ap­points High Court judges.

Gov­ern­ment af­ter gov­ern­ment has cho­sen not to heed this call. One can on­ly as­sume that politi­cians of all stripes just sim­ply do not wish to give up the con­trol over the court which they po­ten­tial­ly ex­er­cise.The cur­rent Min­is­ter of Labour de­clared pub­licly that he in­tend­ed to do some­thing about the tenure of In­dus­tri­al Court judges. He is run­ning out of time.

It does not take much to ac­com­plish the nec­es­sary change. On­ly a sim­ple ma­jor­i­ty is re­quired. And it does not in­volve amend­ing the Con­sti­tu­tion.