A Judiciary in disarray

A FORMER high commissioner of Canada, speaking at the opening of the Law Term, has now added his voice to the current chorus bemoaning an absence of accountability by the Judiciary. However, in a column in the Newsday of 12/1/15, almost three years ago, I had again raised this issue. I quote from that column at some length for two reasons.

The first is to note the tendency of the media to give prominence to issues only when a crisis occurs and to focus on the symptoms while ignoring the long-standing underlying causes. The second is the failure to initiate public discussion of recommendations made in the past by sundry individuals, committees and commissions for resolution or amelioration of the problem.

In my column of 12/1/15, headlined “A dysfunctional judicial system,” I resorted to some detail in outlining my concept of accountability by the Judiciary. I had earlier questioned the view widely propagated that to ask people in constitutionally independent positions to account for their performance was to somehow question their integrity.

Associated with this view is the misconception by many that all that is required for good and proper governance is to identify people of presumed integrity and character, assign them to positions of authority, announce their independence, insulate them from scrutiny and let them function with full discretion.

In giving effect to this principle, we would be putting our faith wholly in men and women and, while the integrity, character, judgment, experience and intellectual attributes of people in authority and more so in a judicial capacity is important, this requirement of governance should be balanced by appropriate systems with relevant checks and balances and oversight as key elements of a functioning democracy.

In January 2015, I said: “Another issue is the question of accountability by the Judiciary — to whom and in what regard. It may be that members of the Judiciary are accountable in some measure to the Chief Justice but neither the Judiciary nor the Chief Justice is accountable to any public institution for the administration of justice in the country.

“Let me emphasise that a request for accountability does not, in my view, impinge on the independence of the Judiciary. Accountability has to do with an assessment of the overall conduct of the judicial system in delivering justice in a timely and expeditious manner with the exercise of due judgment and deliberation and to the general satisfaction of the populace.

Independence connotes insulation from interference or influence in the core judicial functions of making decisions in individual cases.

“The plaintive address of the Chief Justice at the beginning of the Law Term cannot qualify as proper accountability. It is more like whistling in the wind. If complaints are directed to the attention of members of the public, then the latter has little recourse to either question or take corrective action.

If issues are elaborated for the benefit of the Executive, then it is not the most appropriate forum for attracting the attention of the Executive.

“It is my view that a judicial committee of Parliament, being an institution representative of the people, should be established to which the Judiciary should account. At such hearings, the Chief Justice would be required to make a statement on the general performance of the Judiciary and whether objectives set are being met or not.

Details are provided with respect to problems encountered whether due to lack of human or financial resources, tardiness in legislative reform, administrative deficiency or other shortcomings.

“The Chief Justice would be subject to questioning by committee members after which a report is submitted to Parliament for debate… It is through such a mechanism of accountability and parliamentary exposure that proposal for remedial a c t i o n with res p e c t to the administration of justice may get some t r a c - tion.