Justice Minister A.J. Nicholson. - File

The Editor, Sir:

The letter from attorney Gordon Robinson (Gleaner, May 18) defending the Minister of Justice for his utterances against a judge, made me consider anew the extent of a judge's independence and what may be said from the bench.

Significantly, the news of a Minister of Government con-demning a judge for a statement made in court has gone abroad.

In a recent telephone call, the Hon. Mr. Justice Louis Fox, a retired Jamaica Court of Appeal judge living in Toronto, Canada, said he was distressed to learn that the Attorney-General (the official he named) had publicly scolded a judge, as scolding should only be done by the Chief Justice, he said.

He further expressed surprise at the treatment meted out to the lady judge in Westmoreland; he was appalled to hear that a Supreme Court judge was denied accommodation at a hotel.

Wherever he went on circuit in Jamaica, his presence was regarded as prestigious for the hotel where he stayed, and if no proper accommodation was in place, he would have something to say about this in court.

Justice Fox authorised me to make his views known, and I wish to add that where the Office of Attorney-General and Minister of Justice are held by the same person, there is a distinction without a difference as to how the scolder is named.

Be that as it may, the present quarrel invites attention to the position of judges in two countries where currently the judiciary is beleaguered.

Step in the wrong direction

Although Jamaica has not reached the stage in Pakistan where the President suspended the Chief Justice, or the stage in Trinidad and Tobago where the Chief Justice is under siege, the recent public castigation of a judge by the Minister of Justice is seen as a small step taken in the wrong direction.

It is viewed as an incipient attempt to restrain a member of the judiciary from speaking freely from the bench.

It must be made clear that the minister, like anyone else, has a right to disagree openly with judges and, if he considers it necessary, even publicly disparage their statements made in court - how this is done will largely be a matter of taste.

But there is no right for anyone to shut up or indirectly intimidate a judge when speaking in court.

In the present dispute, the minister has not shown that the judge said anything that he regards as wrong or inaccurate. The minister was not commenting on what the judge has to say about her discontent over her personal comfort and security, which he had authority to do.

Instead, he was chastising the judge only for speaking from the bench.

The minister publicly rebuffed the judge solely for speaking in court, as distinct from a rebuke for the content of what was said.

Here there is a great difference and this is where Mr. Robinson's conclusion is challenged. There is no right for anyone, much less so a Minister of Government, to try to prevent or curtail in any way a judge's full and free authority to speak in court; even when what is said is not accepted and can be condemned as wrong.

The statement by the minister is regarded by some as intimidatory when a judge is censured for speaking in court.

Here is a dangerous precedent to be heeded, a blurring of the line for separation of powers between the respective arms of government - the legislative, the judicial and the executive.

Watching the watchman

The courts are the guardians of our rights and freedoms and judges must suffer no hindrance in performing their functions. I recognise that authority to correct or prevent abuse of power may itself, by its use, become an abuse of office.

While the judiciary has power to restrain the abuse of office by others, maintaining the division between the executive and the legislature and must protect itself from incursions into its own functions by either or both, it must also guard against its own abuse of office.

Who watches the watchman? There has to be a way to deal with inappropriate conduct by judges that falls short of what is required for removal from office, while still respecting the rule for separation of powers.

The Chief Justice, as the first among equals, should be trusted to take appropriate action where a judge's behaviour is not in keeping with what is expected for the high office.

It is for him to admonish a brother judge for unbecoming conduct, such as saying the wrong thing at the wrong time, or in the wrong place. When this is necessary, it is done in private and, no doubt, done with dignity and decorum.

Never would the Chief justice publicly scold a judge for what was said from the bench, as was done by the Minister of Justice.

Appointment of judges

Much of this present controversy would not arise if in the appointment of judges the old saying is observed: "First of all look for a gentleman (or lady), so much the better if he (she) knows some law."

There is no saying, however, what the fortunes at the polls may throw up to elected office where the appointment of judges can be severely influenced, which too must pass.

I am, etc.,

FRANK PHIPPS

20 1/2 Duke Street

Kingston