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JUDGES AGREE NOT TO JOIN POLITICAL PARTIES

By Andre Bagoo Sunday, September 19 2010

click on pic to zoom in
Chief Justice Ivor Archie. ...
Chief Justice Ivor Archie. ...

FOR THE first time, judges — and in some cases even their relatives — will subject themselves to what is effectively an informal code of conduct that bars them from dealing in politics and regulates their financial and social affairs.

The unprecedented rules, which were announced by Chief Justice Ivor Archie at the opening of the 2010/2011 Law Term last week, are now in final draft form after having been quietly circulated among judges and masters over the last few months. They have been obtained by Sunday Newsday.

The “Guidelines for Judicial Conduct” deal with: judicial independence; integrity; propriety; impartiality; equality of treatment; competence and diligence. Notably, they call on a judge or masters to refrain from:

* membership of political parties, political fund-raising, contributing to political parties financially, attending political fund-raising events, taking part publically in political discussions, holding office in a political organisation, making speeches or endorsing candidates for such organisations or even purchasing tickets to political party dinners;

* inequality of treatment or discrimination of litigants on any grounds whatsoever, including: sexual orientation, race, religion and gender;

* “inappropriate connections” and influence by the executive and legislative branches of Government;

* behaviour in social settings which, because of the nature of their office, could attract “adverse notice”, private business dealings or frequent transactions involving lawyers, conflicts of interests and accepting certain gifts.



On politics, the rules warn that, “a judge shall resign from office before he becomes a candidate for election to presidency or political office or is appointed to political office.”

Further, “a judge shall refrain from conduct such as membership of groups or organisations or participation in public discussion which…might undermine confidence in the judge’s impartiality” and shall upon appointment, “cease all partisan political activity or involvement.” Of political controversies, the guidelines note that, “partisan political activity or out of court statements concerning issues of public controversy by a judge undermine impartiality (as they) involve a judge publically choosing one side or the other.”

“Judges should also consider whether mere attendance at certain public gatherings might reasonably give rise to a perception of ongoing political involvement,” the rules add.

While the Equal Opportunities Act, which bans discrimination in this country, controversially omits the ground of sexual orientation, the draft rules ban judges from impartiality on the grounds of: “gender, race, colour, religious conviction, culture, national origin, ethnic background, sexual orientation, disability, age, marital status, social, political and economic status and other like causes.”

Of a judge’s social behaviour, the rules advise that, “a judge’s conduct, both in and out of court, is bound to be the subject of public scrutiny and comment. Judges must therefore accept some restrictions on their activities — even activities that would not elicit adverse notice if carried out by other members of the community.”

Some rules even apply to judges’ families, defined as including: current and former spouses; children; in-laws; close relatives and companions or anyone in “a close personal relationship with the judge.” In one instance, a judge, “shall not use or lend the prestige of the judicial office to advance his private interests or those of a member of the judge’s family.”

In relation to judicial independence, the rules hold that, “a judge shall not only refrain from inappropriate connections and influence by the executive and legislative branches of government, but must also appear to the reasonable observer to be free of such” and “must firmly reject any attempt to influence his decisions in any matter before the court outside the proper process of the court.”

The written guidelines, said by legal sources to be new to this jurisdiction, are not dissimilar to others from Commonwealth countries such as Canada. Locally, however, the rules have had a long and, perhaps, fraught history.

For instance, Archie first mooted the idea of a judicial code of conduct back in September 2009. Speaking at the opening of the 2009/2010 Law Term at the Hall of Justice, he said, “we accept our responsibility and are putting our house in order…The code of judicial conduct is now substantially complete and will be formally adopted and circulated for public information before the end of the year.”

“This is the standard to which we will publicly agree to hold ourselves accountable and which you are entitled to expect and demand of us,” he said, though the code would not be released before the end of the year as promised.

Perhaps this was due to the fact that the Chief Justice was faced with some opposition from judges to the use of the word “code”. The judges feared the term would suggest a binding, legally enforceable set of rules, and would open a jurisprudential hornet’s nest over whether judges should – or even could theoretically – bind themselves. There is also concern among legal circles that a legally enforceable code would undermine judicial independence and allow litigants to scuttle the judicial process by seeking lines of inquiry which would attack the personal affairs of judicial officers.

As such, at the opening of the 2010/2011 Law Term last week Thursday, Archie changed tack, describing the rules as “guidelines” which will be voluntarily subscribed to.

“Much emphasis is being placed on the creation of a professional ethos in which we hold ourselves accountable to publicly articulated standards,” Archie said.

“In that regard I am pleased to announce that the judges and masters have now taken the lead in voluntarily subscribing to written guidelines for judicial conduct, which deal with matters as diverse as financial investments, recusal, organisational memberships, fiduciary activities, acceptance of honoraria and post-retirement employment.” He added that the rules will now become a vital aspect of the Judiciary. “We believe that measures like these are important if we are to retain the trust and confidence of the population. The guidelines will be available for public examination very soon,” he said, this time shying away from giving a specific release date.

The rules come at a sensitive time for the Judiciary as it straddles the country’s transition from one Government administration to another. They also come after high-profile embarrassments for the Judiciary, involving judicial officers moving on to politics in questionable circumstances as well as allegations of cases being wrecked at the Magistrates’ Courts after interference from the political executive and others.

Just last week, Archie thanked former High Court Judge Justice Herbert Volney (now the Minister of Justice in the PP Government) for his service. Volney had resigned from the bench abruptly near the eve of the May 24 General Election. Archie also thanked former Attorney General John Jeremie, who in an earlier tenure as AG was accused of tampering with a case presided by former Chief Magistrate Sherman Mc Nicolls, the man who accused former Chief Justice Satnarine Sharma of criminal misconduct for allegedly interfering with the 2006 Basdeo Panday Integrity Trial. Mc Nicolls later withdrew his allegations and Sharma, who was the first sitting Chief Justice to be subject to criminal proceedings, was later cleared by a constitutional inquiry.

Mc Nicolls was eventually served with charges by the Judicial and Legal Service Commission (JLSC) – the body with power to discipline judges – for bringing the administration of justice into question because of his failure to testify. But a deal was reportedly worked out by lawyers, with Mc Nicolls proceeding on leave in lieu of disciplinary proceedings.

Of Mc Nicolls, who is ailing and who retires in December, Archie said, “our prayers go out to him for improved health, along with our thanks and deepest appreciation for his very long and dedicated service, especially during a period which saw tremendous strides in the reform of the Magistracy.”

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