Settle it in the courtroom

Apr 02, 2017 Features / Columnists, Peeping Tom

A matter involving an exchange of words within a courtroom between a judge and a lawyer should end within the courtroom. What began in the courtroom should end there and not have to be settled outside of it.
The President should not become enjoined to this matter, until such time as a resolution takes place within the courtroom. Only then should the President become involved. And only if he feels that the situation warrants such involvement, because it is likely to bring his government into disrepute or is inconsistent with the standards of public conduct which he has laid down for his ministers and officials.
A report in one section of the media had suggested that the judiciary was to have written to the President on this matter. It is not clear whether this was true, but if it is true, then it would be an unfortunate development which will only compound a simple matter.
The judiciary should not be writing to the President about any occurrence in the court. The judiciary does not have to explain itself; it does not have to seek a remedy from the government. Nor does it have to be complaining.
Any complaint by the judiciary to the Executive about an incident within a courtroom will create the impression that the judiciary is expecting the government to take some action in the matter. It is not good for the judiciary to be perceived as having expectations from the government.
There are means available to a judge if he or she feels offended by anything which happens in his or her courtroom. In fact, in this instance, the judge concerned has clearly indicated what action he intends to take and what he expects to happen. Provisions exist for such matters to be dealt with condignly by the judge after due process.
There is supposed to be separation in law and in practice between the judiciary and the Executive. That distance is the buffer which prevents interference or influence by one over the other.
The President can, of his own volition, take whatever action he wishes in relation to the matter. In fact, the President has asked for an explanation based on reports he has seen or heard. That is his right to seek clarification, but it may be precipitate for the President to asking for an explanation unless a formal complaint would have been made to him.
A formal complaint from the judiciary, however, is unnecessary. The matter should be handled internally, within the judiciary.
This matter, if allowed to fester, will not be good for the image of the country. Guyana had in the past sullied its reputation in the region and further afield by narrowing the distance between these two important arms of the State. The flag of the ruling party was once flown over the Court of Appeal. Long established conventions were set aside in relation to members of the Bench becoming members of the Executive. This precedent was criticized within the Caribbean.
We now have former judges writing letters in the press on contentious political and legal issues. The arguments made in those exchanges have, in some instances, been demolished by persons of lesser rank. This is not just embarrassing; it has implications for the respect that is likely to be shown by the younger generation to our jurists.
It is not an issue of freedom of expression. It is a question of conforming to long established conventions and the influence that an ex-judge’s decisions and opinions can have on sitting members of the Bench and wider society. An ex-judge’s opinion carries some weight and credibility, but when it is so easily demolished it raises a number of troubling questions.
Every citizen has the right to work. But ex-judges should not have to appear as advocates of litigants in cases. Imagine an ex-member of the Bench having to be overruled by a magistrate or a judge who is his or her junior. Imagine the influence that an ex-judge appearing as an advocate can have on a magistrate or judge.
The government should also stay clear of issuing awards to sitting members of the Bench, and those sitting members should refuse those awards while sitting. It is no harm in accepting them once one is off the Bench, but not while one is a sitting member of the Bench. A similar situation caused uproar in neighbouring Trinidad and Tobago, not because of any bias, but because of the mere perception which such an action can trigger.

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