Gordon Robinson | Judges have rights, too

By now everybody knows I’m a big fan of the 2011 Charter of Fundamental Rights inserted into our otherwise flawed Constitution.

My only critique of it is that it doesn’t go far enough. I’m aghast that it expressly “saves” and legitimises pre-historic fears of same-sex relationships and denies some couples civil rights freely available to others despite a provision “guaranteeing” equal treatment under the law. I insist that freedom of the press ought to have been expressly included. But the Charter is a significant move in the right direction and has produced a genuinely effective balance between individual rights and those of the collective public.

So good on the Charter! For me, the most important right it guarantees is the unadulterated, unconditional right to freedom of expression coupled with “the right to seek, receive, distribute or disseminate information, opinions and ideas through any media”. In a country like Jamaica, with a small population wilting under a soul-destroying combo of political tribalism and undereducation, those rights are important weapons in the fight against creeping totalitarianism, which appears enshrined in the rest of our Westminster-fawning Constitution. Without enforceable freedom of expression, there’s no defence to politicians’ congenital anti-democratic instincts.

FEARLESS PANTON

In days of yore, fuelled by a very British tradition of using a stiff-upper-lip rather than expression as defence against calumny, our judiciary has been beyond reticent to speak out on public affairs, whether or not the issue was specifically before an individual judge. Judges have been particularly tight-lipped in (non) reply to public criticism of them or their judgments. I often commented on this anachronism (and defended judges who refused to defend themselves) but put it down to the legal profession’s brainwashed belief that it was still British and the pretend protection of free speech in a post-independence British-imposed Constitution. Judges did find ingenious ways of including public affairs comments in their judgments or in public-speaking events (for example, to service clubs), but these were tolerated as “extra-judicial dicta”.

The brilliant and fearless Seymour Panton, former Appeal Court president, was never shy to comment on matters affecting justice, especially the issue of our insane clutching the Privy Council’s skirt instead of at least taking a progressive step by embracing, however temporarily, the Caribbean Court of Justice (CCJ). He has continued to do so post-retirement. Nobody had the testicular fortitude to reprimand him for his public exercise of his right to freedom of speech.

I was first (see Chief Injustice ; Gleaner; February 4, 2018) to publicly castigate government for trying to put a new chief justice (CJ) on probation. At the time, PM warned, at the official swearing-in ceremony of Sykes CJ (whose appointment was welcomed by me and the overwhelming majority of practicing lawyers), “actions that bring results will determine the assumption of the role of Chief Justice”.

I was overjoyed when a week later, 97 judges from across Jamaica met on the subject and issued a lengthy, very public communiqué condemning the PM’s comments.

In part, the judges said:

“It is our considered view that declarations of the Prime Minister relative to the acting appointment unquestionably have serious implications for the fundamental principles of the separation of powers and the independence of the judiciary. These are principles of great jurisprudential value as they form the foundation of our constitutional democracy and which are critical imperatives for the protection and preservation of the Rule of Law.”

I applauded them then. I applaud them now. No judicial authority reprimanded them.

Government soon walked back the acting appointment and confirmed Bryan Sykes as CJ, since which time he has, in my opinion, done a magnificent job in taking a creaking, archaic organisation and infusing new thinking, new ideas, new methods, a new philosophy of efficiency and, most importantly, new optimism. That last bit he achieved by personally engaging stakeholders in several public statements (whether at speaking engagements or novel addresses to the nation as CJ) setting out and explaining goals for swifter and more certain justice and plans for achieving them. So good on him, too!

NEW TYPE OF JUDGE

Recently I was happy to see another manifestation of a new type of judge, uncluttered by British tradition and very aware of Jamaicans’ right and need to know, when Mr. Justice David Batts wrote a personal letter to the editor published on June 23, correcting a previously published misconception that recently announced judicial salaries gave effect to a report of the ‘Ninth Independent Commission’ on judicial salaries.

Proving that neither justice nor judges (its chief protagonists) were cloistered virtues, he wrote:

“The fact is the announced increase in salaries bears no relation to that which the commission recommended. This is not unusual and continues a pattern set by previous administrations in which government virtually ignores the recommendations of the commission established by statute to review and report on judicial salaries. I think it is important the public be made aware of this.”

I agree. While MPs whine about inadequate salaries for their mass transport of voters to polls, banging on parliamentary desks, and passing overly-intrusive government-sponsored laws like mandatory NIDS without regard for anything but politics, we should know how persons providing our final protection from government abuse are compensated for THEIR service.

Batts J. went on to make an important point:

“In a democracy, an independent judiciary is necessary if the rule of law is to be maintained. This is so because when issues arise between the citizen and the State, or between citizens of unequal economic strength, the judges must be able to decide those issues without fear or favour. One important ingredient in that independence is the economic well-being of the judge.”

Amen. And applesauce (work it out; it’s comic)! I’ve known David Batts professionally ever since he left law school (sometime after I did) and worked at the law firm of Livingston Alexander and Levy. He has always been an activist for the improvement of the profession. Unlike me, who prefers reclusiveness, he unstintingly gave his time and talent in service to important associations like the Jamaican Bar Association, where he was instrumental in the preparation and successful presentation of the case against the adoption of the CCJ as Jamaica’s final court of appeal. Over the years, we’ve had many disagreements (especially on the CCJ issue) and have often appeared on opposite sides of hotly contested litigation. I’ve always found him to be of the highest intellect, integrity, and discernment. He has brought these essential qualities to his new life on the Bench.

So imagine my shock and amazement to see a Gleaner report on Wednesday of a (leaked?) letter of reprimand from CJ to Justice Batts regarding that excellent letter to the editor. My head spun faster than Linda Blair’s. I just don’t get it. Both are excellent judicial officers; both have outstanding records; CJ has often commented publicly on judicial matters; so que problema? They obviously have different opinions on which issues upon which a judge should comment publicly or maybe how the comment should be made or released. But are the prospects of an excellent judge to be blighted for simply exercising his constitutional right of free speech?

Justice Batts sat on the same panel of judges as CJ in the landmark NIDS case, and both wrote brilliant judgments. So what’s going on here?

ORGAN OF THE STATE

I feel obliged to remind CJ that the Constitution mandates that “Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes [Constitutional] rights”, [Section 13(2)(b)] and that as a constitutionally created office [Section 97(2)], the office of CJ is an “organ of the State”. It’s entirely within the purview of a CJ to have a difference of opinion with one of his judges regarding the propriety or process of an intended expression of opinion AND to go so far as to advise against it. It’s not okay when the judge feels strongly enough to act against that advice for CJ to take any step, such as a written reprimand circulated to all judges (as reported), that could adversely affect his judicial future. In my opinion, that would be open to an interpretation of abrogating, abridging or infringing, however inadvertently, the judge’s right to freedom of expression and dissemination of opinion.

CJ wrote: “Is it that we are now at the stage where the belief in our own rightness is so strong that no other view will dissuade any particular course of conduct?”

That may be true as CJ seems so certain of his own rightness that Justice Batts’ contrary view hasn’t dissuaded him from appearing to embark on a course of conduct that encroaches on the judge’s constitutional rights.

Peace and love!

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com