Matondo Mukulu | Our courts need academic lawyers
Most recently, I have had cause to look at the composition of senior courts across the Commonwealth and how judges are appointed. Of course, there are significant differences in how persons are appointed, but my concern is with the question of whether academic lawyers should be appointed to sit as judges.
In the Caribbean, we seem to have an aversion to academic lawyers sitting on the Bench, with a certain penchant, in some instances, to appoint persons from what can be loosely referred to as the public Bar, or those who formerly practised their craft on behalf of the State.
An academic lawyer is a person who, while legally qualified and having obtained a practising certificate, chose to teach the law to aspiring lawyers. In addition to lecturing at law schools within a specific country, I am equally of the view that, to be taken seriously, an academic lawyer must have publications in scholarly journals and occasionally set out his or her views for the consumption of those members of the public who do not read legal journals. In this regard, in the Caribbean context, I would not regard as academic lawyers persons who are part-time lecturers at a law school who do not contribute to the legal discourse in a specific jurisdiction.
The academic lawyer must be contrasted with those who are practitioners of the law, whose lecture room are the courts and tribunals within their jurisdictions, and their contributions to the evolution of the jurisprudence is to argue cases which, hopefully, will help to change the law and impact on the teaching done by the academic lawyer. Of course, there are those within the Caribbean jurisdiction who practise, teach and write.
Former practising lawyers
To the onlooker and, certainly, to some who are practitioners of the law, the idea of an academic lawyer sitting on the Bench and making determinations of what are, in essence, procedural issues, is slightly odd, if not wrong. In fact, so strong are the objections to academic lawyers sitting and getting involved in the process that I seem to recall that years ago, one of the anaemic arguments that were used to block Professor Stephen Vasciannie's appointment to the post of solicitor general was that he lacked court time. Of course, those who were in the know would have known that apart from being a brilliant academic lawyer, he has been involved in litigation to the Judicial Committee of the Privy Council.
There are merits to having practitioners sitting as members of the Bench, as, without question, especially at the lower level of the court system, the resolution of procedural questions is, perhaps, best dealt with by those who were once practitioners who dealt with thorny procedural issues on a day-to-day basis. So there are obvious benefits, and common sense would suggest that it would not be sensible to move to a situation where there are only academic lawyers sitting to determine cases brought by litigants.
The system of selecting judges in the Caribbean, certainly in Jamaica, is governed by statute and a reading of the relevant Jamaican statute shows that those who have practised law are preferred. Thus, for example, one cannot be appointed to sit as a magistrate unless he or she has practised law for at least five years. So, in a way, there is a natural statutory bias in favour of those who have had some time at the Bar, and the same bias is reflected in the appointment of persons who are selected to sit on the Supreme Court Bench, as judges of that court must have practised law for at least 10 years.
This contrasts most significantly with what obtains, for example, in respect of the appointment of justices to the American Supreme Court. In the first instance, the US constitution is silent on the qualifications that must be possessed by any person nominated to sit by the president, with that person needing to scale a confirmation hearing in the American Senate. The silence on these issues has not precluded a certain type of appointee.
Thus, usually the appointee is a graduate of one of the top five US law schools, and that person would have served or spent some time in some public (legal) office or spent time teaching the law. Most notably, we know that the first ever female justice (Sandra Day O'Connor) had served as an elected state official years before her appointment to the Bench.
In Jamaica, I suspect that the name Carl Rattray comes to mind, as he was a People's National Party-appointed senator, prior to his appointment in 1993 as president of the Court of Appeal. However, in the American and, to a lesser extent, in the UK judiciary, we do find academic lawyers, who have spent relatively little time practising, being appointed to the Bench, and their contributions has been no less than that of their colleagues who are seasoned practitioners.
What then are the arguments that I think should be deployed in support of the appointment of academic lawyers to the Bench in the Caribbean? In the first instance, by widening the pool from which we can select our judges, we would have a natural increase in the numbers of judges that are available. This should help to increase the pace at which cases travel through our court system.
Second, and especially in the area of constitutional law or human-rights law, it would seem to me that an academic lawyer would, perhaps, have spent considerably more time pondering and lecturing on issues of constitutional importance than the equivalent constitutional law practitioner, as those cases are not, in the Caribbean context, regular occurrences that would cause an expert to have a frequency of exposure.
Third, invariably, an academic lawyer is very likely to have had far greater real-life experiences (not always) than a career practitioner, if only by the very fact that they tend, usually, to get involved in other spheres of life, through their lecturing and civic participation and research. One cannot, and should not, underestimate the importance of such experience to the dispensation of justice, as it tends to help to bring about resolutions and an understanding, which a purely legal outlook, at times, can miss.
However, the most effective argument in support of having academic lawyers sitting as Caribbean judges is the fact that it will, or can, increase the numbers of female judges. A quick look at both law faculties in Jamaica will show a higher proportion of women to men as lecturers. If the qualification for appointment took into consideration the years spent teaching, researching, and the nurturing of potential lawyers, it is not inconceivable that there will be a natural increase in the diversity on the Bench, as the academic lawyer pool is filled with talented women who would wish to continue their involvement with the actual practice of law and the delivery of justice.
The Caribbean Bench requires academic lawyers, and there has been no real case advanced as to why we should not have a healthy mix of academic and non-academic lawyers on the Bench, save that it has been the tradition. Tradition, at times, must be broken, and new ones invested in, especially in this case, where the court users will benefit. The thing speaks for itself.
- Matondo Mukulu is a public-law barrister and attorney and former acting public defender of Jamaica. Email feedback to firstname.lastname@example.org.