Ministerial Responsibility vs Judicial Independence

Inflammatory, revealing, inappropriate, crucial. Whatever your reaction to Chief Justice Michael de la Bastide’s 52-page speech, where he warned that the independence of the Judiciary and his own office was under serious threat, it was, in the end, democratising.

It may have created another of our seven-day bacchanals: a flurry of speculation, gut responses based on allegiances to the main players, hearsay and a little knowledge. But it took what could have remained as an ivory tower struggle between two men holding the powerful offices of Chief Justice and Attorney General and gave it back to the people. It got us asking questions. Is the independence of our Judiciary under threat? Does it follow that as a people our fundamental freedoms and rights are being eroded? Or is it a clash of power between two personalities holding high office?

The official response to these questions from the Attorney General’s office was that the AG, Ramesh Lawrence Maharaj, now abroad, “is in the process of preparing a response to every allegation made by the CJ”. But a high-level source from the AG’s office responds to the CJ’s speech. From the Chief Justice’s office I spoke to one of this country’s highest judicial sources. Given the potentially volatile nature of this debate, both wished to remain anonymous. Both parties agree that the issues of the Chancellor and the new rules for the Judiciary are not part of the immediate impasse between the AG and the CJ. The stand-off between the two is a commonplace public service procedure:  the Cabinet note.

The present system which obtains throughout the English-speaking Caribbean is that, in theory, the CJ’s Cabinet notes go via the AG directly to Cabinet unchanged. In reality, the two offices discuss the notes informally before they are presented to Cabinet. The AG has allegedly proposed that as the minister of government responsible to Cabinet on all legal and judicial affairs, he should approve the CJ’s Cabinet notes. The AG’s implicit position is that recommendations made, or money dispersed in his name, should have his approval to ensure accountability.

The CJ’s position, stated in over 52 pages, say once “such a regime is introduced, judicial independence has been severely compromised.” Reginald Armour, a prominent attorney-at-law and former temporary judge, says “the only way to approach the CJ’s speech is for us to discuss the issues that arise out of the speech, and not the personalities involved. The real issue is that of the constitutional framework for the relationship between the office of the CJ and that of the AG against the background of the independence of the Judiciary.

“What we as a people, citizens and lawyers, have to agitate for now is a structured debate in a public forum - informed by facts.”

The question now is, in the wake of the CJ’s explosive speech, who will ensure the debate will not deteriorate into fodder for partisan groups or vapourise into nothingness by ambitious and/or spineless attorneys who want to be on the right side of these powerful men? Who will arbitrate the arbiters?

Attorney General’s Office:

State Attorney

1. There is a distinction between fact and rhetoric. People are confusing separate issues including the new rules of court, the appointment of a Chancellor, the relationship between CJ and AG to suit themselves, and often without any basis in fact.

2. If the personalities in question were different (not as strong as they are), a lot of this could be resolved quietly. Most of the Chief Justice’s concerns regarding the Judiciary could have been worked out without being brought into the open. In fact, the two men have discussed most of the issues raised by the CJ behind closed doors.

3. Nowhere is the AG getting more personal power. The Constitutional Amendment Bill gives parliamentary committees the power to demand accountability. The proposal for an administrative Chancellor came independently from the president of the Law Association. The CJ’s speech was more of a personal vendetta against the AG: a bid to grab unprecedented power, couched in concern for the independence of the Judiciary.

4. The AG, by law, represents legislative and legal matters to Cabinet. Like every minister of government he has to approve Cabinet notes.

5. The CJ wants more power. He has a problem being considered on par or below the minister in terms of budgetary allocations. The CJ wants full control of the Judiciary’s finances, and feels he should not have to go through the AG to send a Cabinet note. There is no precedent for that. Even the Prime Minister and President have to go to Cabinet for allocations. If the Judiciary stopped going through Cabinet for budgetary allocations you will still face the problems of accountability in the CJ’s office, which is made up only of people in the Legal and Judicial Commission of which he is chairman!

6. Many judges are longing to become senior counsel - the AG and CJ determine their fate so they obviously want to be careful. Even senior counsels are in line to one day become Chief Justice or Attorney General so they are keen to appear neutral in this debate.

7. Most of the CJ’s speech took the form of a personal attack against the AG, which was in bad form in a public forum. There are fundamental differences in the way they see things, but most of the CJ’s allegations have no basis in fact. Most of this is documented but that battle will be dealt with in due course.

8. This government is committed to both judicial independence and accountability.

Chief Justice’s office:

Leading Judicial Source

1. The CJ has no problem with people opposing him tooth and nail on the issue of the appointment of the chancellor. What he is concerned about is the use of the Cabinet note to control the Judiciary.

2. While the issues of the Chancellor and the new rules are out in the open and can be debated, the issue of increased power for the AG is not. If “they” think the AG should have new powers of veto over expenditure for judges’ appointments and salaries, perks and holidays (which has happened by interpreting Cabinet notes in a new way) and, ultimately, the running of the Judiciary, they should say so.

3. Once increased power is granted to the AG’s office, every AG (now and in the future) is not likely to relinquish it.

4. Under the Constitution, there is nothing that provides for the AG having a ministry. The Constitution names the Prime Minister and the Attorney General as the two mandatory members of government around whom the rest of the Executive is formed. Traditionally, the AG is the conduit between the Judiciary and the government. His constitutional role is to advise the government, not to oversee the Judiciary.

5. In the past, the AG served as a conduit between the CJ and Cabinet. Now the AG says, in effect, to the Chief Justice, “You have to report to me. I have the power, delegated from Cabinet, to decide on appointments, training, perks, salaries.” Whether judges give way to political pressures is not the point. The point is: they should be put in a position where these pressures don’t exist. Lawyers are notably spineless and don’t want to offend either the Chief Justice or the Attorney General, so they are not getting involved. I may not agree with Israel Khan but, at least, he has the courage to say something. I would like anyone interested in democracy to answer whether they think these powers should be vested in the AG.  This has nothing to do with personalities and parliamentary committees. The Judiciary’s administrative independence is accepted throughout the Commonwealth and in many other parts of the world.