Bert Samuels | Judicial code of conduct needed
I was called by the secretary for the registrar of the Supreme Court sometime during the week of May 23, 2016 who advised me that the High Court judge before whom the Trafigura matter was part-heard wished to speak, in his chambers, to the lawyers involved on Tuesday, May 31.
The dress code for chambers is that male lawyers should be in a suit and tie. Out of an abundance of caution, I called the same secretary the day before the hearing and confirmed that the matter was, in fact, a "chambers" matter. Chambers is where judges normally meet with lawyers to discuss "side issues" relating to a case. I turned up in chambers with an associate lawyer, who was also dressed for Chambers, on Tuesday, May 31, in obedience to the judge's wishes and to represent our clients.
The information given to me that the matter was to be held in chambers was confirmed by the fact that the judge was present and commenced hearing the matter in chambers. The judge made note of the fact that I was appearing for a number of the witnesses in the said Trafigura matter, including the holder of a constitutional office, the leader of the Opposition.
He commenced by stating that he wanted to refresh his mind about the issues in the matter, as the matter was last before him some four years ago. He was briefed and, among other things, he was reminded that there was a stay of the proceedings before him, ordered by the Court of Appeal, pending an appeal against his decision to hold the statement-taking exercise in open court, as opposed to in camera/in chambers.
After about 30 minutes in chambers, the judge said he was now moving the matter to open court. The dress code for open court is dark suit with tabs and gown. I pointed out immediately that I was not properly dressed for open court, in that we were told the judge wanted to speak to the lawyers in the matter in chambers. The judge insisted that he would be moving to open court, nonetheless. I, with courtesy, pointed out that the clients for whom we appeared would be denied representation if he resorted to open court, in that I could not be heard in open court. My objection was overruled, and the matter was transferred to open court.
In open court, there were court reporters recording the proceedings. I went into the court and sat in counsel's bench. As the judge entered the court, I stood on the floor of the court (away from counsel's bench) and respectfully requested that, as is done at times, we could treat the open court hearing as a hearing in chambers so that I could continue to be heard and so our clients could be represented. This request was denied and the matter went on, leading to the summonsing of my clients to court on Monday, June 6, 2016, as though their absence from court was as a result of a failure to attend, in the face of the Court of Appeal's stay against the judge continuing to hear the matter.
Code of Conduct
Judges in Jamaica are not subjected to a code of conduct. They enjoy wide powers to maintain order and good conduct in their courts and chambers. The drastic punishment of removal from office of a Supreme Court judge is the only disciplinary provision set out in the Constitution at Section 100 (4). This is for misbehaviour or physical or mental ill health, which prevents them from discharging their functions.
So, whereas in my case outlined above I was effectively excluded from representing my clients, the judge broke no "rules of conduct". Where my clients lost their freedom of choice of counsel to represent them, and where they were denied a hearing and right to due process, the judge was not in breach of any code of conduct with attendant legal recourse to those offended by that breach.
Concomitantly in that said courtroom, if I stepped out of line (e.g., seeking to address the court without being appropriately dressed), or shouted at the judge, I could be held in contempt and tried by the said judge, or in breach of the canons of the profession, and be tried for professional misconduct and duly punished by my colleagues!
The judge administers the law but he is not above the law. The rule of law is offended when any of its players are allowed to breach the constitutional rights of the land and get away with it scot-free. In professional games, the misconduct of the referee is as egregious as the misconduct of the players.
I call upon those in charge of the judiciary to, with due haste, draft a code of conduct for judges. This will preserve the dignity of the judiciary. Its absence, in my humble view, puts that high office at risk of the lowering of respect for its occupants.