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The duty of the Judiciary

Published: 
Sunday, December 17, 2017

A major challenge facing the legal profession is to determine what is its duty when there are published allegations made against a judge which have the effect of damaging the reputation of the Judiciary.

The legal profession has a duty to defend a judge if the legal profession knows that the allegations which are published against that judge are untrue. The legal profession owes the judge and the Judiciary that duty because if the judge and the Judiciary is not defended by the legal profession, members of the public would lose confidence not only in the judge, but also in the Judiciary and the integrity of the rule of law.

It follows that a judge who is the subject of published allegations which have the effect of damaging the reputation of the Judiciary owes a duty to the public and to the legal profession to answer the allegations by giving satisfactory explanations in response to the publications. The judge has the option of first giving his explanations to the Law Association so that the Law Association can mobilise the legal profession to give support to the judge and to the Judiciary.

If the judge, however, does not give a public answer to published allegations which have the effect of damaging the reputation of the Judiciary and he does not provide a satisfactory explanation in response to the published allegations against him, the legal profession and the public would be entitled to draw adverse inferences against the judge in respect of the contents of the published allegations. This situation should not be allowed to happen.

Where the judge does not satisfactorily answer the published allegations made against him and he does not co-operate with the Law Association or the legal profession in providing satisfactory explanations tothe published allegations made against him, the legal profession has a duty to the public and to the legal profession to take action to ensure that those published allegations against the judge are investigated in accordance with the provisions of the Constitution and the laws of T&T.

This must be done in order for the public perceptions against the judge and the Judiciary to be appeased. It is necessary for this course of action to be taken by the legal profession otherwise the public would not only lose confidence in the judge but would also lose confidence in the Judiciary and the legal profession as a whole. The legal profession has a duty to vindicate the rule of law because no one is above the law.

Judges, like lawyers, must recognise that they owe an obligation to their colleagues to at all times maintain the dignity and honour of the profession, and they must always act in accordance with the law and the recognised standards of conduct and ethics of the profession.

In a lecture delivered by Lord Hodge, a judge of the Judicial Committee of the Privy Council on November 7, 2016, on the topic, Upholding the Rule of Law: How Judges Preserve Judicial Independence in the United Kingdom, the Learned Law Lord makes the following points:

a) A judge must avoid lobbying public officials for their own interest or the interest of people connected with the judge.

b) An important pillar of judicial independence and the rule of law is the moral authority of the Judiciary which requires members of the Judiciary to live up to their oath and ethical standards both in their work and in their private lives.

In the United Kingdom, judges enjoy considerable moral authority; that moral authority, however, has to be earned by them every day.

As part of the duty of the Judiciary to have public support and confidence, the Judiciary has a duty to correct misunderstandings of matters published in the public, because the rule of law is based ultimately on public confidence in the Judiciary. The legal profession is therefore faced with an important challenge. One thing is certain—if the legal profession remains silent in the face of actions and/or conduct which damage the reputation of the Judiciary and compromise the independence and integrity of the Judiciary, the legal profession would be failing in its duty, both to the legal profession and to the public.

Attorney Ramesh Lawrence Maharaj delivered the feature address at the Law Association’s annual dinner and dance at the Hilton on December 1.