An Unusual Situation In The Judiciary

Some of our Supreme Court (SC) judges come out with an opinion on a subject of public interest. Most of them don’t, preferring to do their duties diligently and with utmost discretion.

Judge Eddy Balancy is third in the hierarchy of the SC. He is one of the judges who has in the past expressed himself publicly on matters which he considers worthy of public comment. For example, he commented on whether sitting judges should be entitled to participate in private arbitration procedures. He also stated his opinion recently on the legislation being passed by the National Assembly to give powers to the Director of Public Prosecutions to appeal cases which were heretofore outside his powers to do so, including cases which were heard a long time ago. His view was that more time ought to have been given for public discussion and debate before such legislation was enacted, to thrash out its various implications in different situations.

While recommending the Bill to the House, the Prime Minister, on his part, held the view that it might not be the best thing for judges to opine publicly on legislations presented for enactment to the House, given that they may themselves have to sit on judgement in cases of appeal drawing from the proposed legislation.

Matters came to a rest after this intervention by the Prime Minister and the passing of the legislation within the original calendar proposed for it. We do not know whether there was a discussion within the establishment of our judiciary on the issue. Unless something to the contrary, one would assume that Judge Balancy has been and remains in the third position at the SC.

Now, a situation has arisen during this week. The number 1 and 2 of the SC, namely the Chief Justice (CJ) and the Senior Puisne Judge (SPJ), have been away from the country. It is the established tradition that judges are called upon to temporarily fill up the positions during such occurrences according to their seniority albeit that the decision for designating who fills the temporary vacancies befalls on the Chief Justice. It has turned out that Judge Balancy, as number three in the judicial hierarchy, has not been called up to assume the higher responsibility during the absences of the CJ and the SPJ. Two judges standing as numbers 4 and 5 in the judicial hierarchy were actually called upon to do so.

The Chief Justice has not furnished any explanation for this departure from established tradition and he is perhaps not bound to do so even when he comes back from his overseas mission. But different sections of the public are bound to ask questions as to why Judge Balancy was not called. If Judge Balancy would himself have, for personal reasons, elected not to take up a responsibility that should legitimately have been his, fine and good.

If that is not so, one ought to be informed that all is going on smoothly in the brotherhood of the judiciary. The public should be left with no doubt that our judges are fully and properly empowered to do their duties. An explanation appears to be in order in view of the decision taken to give precedence to judges who stand behind Judge Balancy in the hierarchy at the SC, despite the standing tradition to abide by seniority. The alternative is for public imagination to run wild in all directions and diverse interpretations to be given to the situation. This will go in the direction of undermining authority of a public institution which should be setting the standards for all others to follow.

We have often stated in the columns of this newspaper that predictability is a supreme consideration in the good running of our public institutions. We would like to think that most reasonable people would agree with us.

* Published in print edition on 18 October 2013