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The CJ on judicial appointments

Wednesday, September 26, 2018

Terrence W Farrell

I am delighted that the Chief Justice spent roughly half of his address at the recent opening of the Law Term commenting on the Report of the Committee on Judicial Appointments established by the Law Association, and of which I was a member. It must be emphasised that the report has not been adopted by the Council of the Law Association which has put it out for public comment without endorsement.

I would like, however, to respond in my personal capacity to some of the comments made by the Chief Justice. It seems that most of the report were consistent with his own views, and this is heartening. The issues with which he takes exception are diversity, the influence of the Chief Justice, and some aspects of assessment.

The CJ acknowledges that diversity is a desirable goal but took exception to the report's categorisation of the ethnicity of judges by observation as “neither useful nor scientific”. The committee was well aware of the difficulties associated with the concepts of 'race', 'ethnicity', and 'gender' and how these are measured. We appreciate, as he avers, that “race is not a concept accepted by reputable science…nor is genetic composition determinable by casual observation”. This means, I suppose, that though I may look at Ivor Archie and say he is of African descent, I may be wrong! Even more than 'race', ethnicity is a slippery and fluid concept, especially in societies like T&T. Yet we do know that people as a matter, of course, classify persons that they encounter and deal with. Far from being unscientific, observation and classification are the first steps in the scientific method, in both the natural and the social sciences.

'We classify and indeed stereotype each other'

In our society, despite the fact that we classify and indeed stereotype each other, we often elect to conceal our views, feelings, and prejudices, informed as they often are by our socialisation and by our biased observations and experiences. Whether the JLSC knows it or not, people do pay attention to the 'race' or 'ethnicity' or 'gender' of the appointments it makes, and do whisper in corridors and private places about what they perceive to be biased in selection. My own view is that as a society we should, wherever possible, record and publish the data on ethnicity and gender. For the public service. For schools and universities. For the private sector. We can ask people to self-report their ethnicity and gender. But we should relentlessly collect the data everywhere and publish it! Data, however imperfect or 'unscientific', can help to overcome bias and innuendo by exposing if not the facts, what Woodward and Bernstein have called the 'best obtainable version of the truth'.

That is the argument that persuaded the committee to publish its 'unscientific' observations. But the data are now out there. So let anyone who wants to comment on ethnic or gender bias in the Judiciary get better (more 'scientific') data and make their case. It is noteworthy that the Chief Justice, contradicting himself on the usefulness of the data, notes that: “…it would seem that the Law Association's (sic) own observations record a very diverse bench so far as that is concerned.” That's precisely what we sought to demonstrate with our 'unscientific' observations!

'Quality should never be sacrificed to achieve greater diversity'

But the Chief Justice's perspective on how to address diversity is debatable. He argues that: “...the only sensible way to achieve [diversity] without compromising quality is to provide a recruitment process that is objective and offers a level playing field to those who choose to apply.” If we find that the Judiciary or any public institution is insufficiently diverse in accordance with current social norms, is there not a case for some form of affirmative action to achieve the goal of diversity over time? In the context of historical disadvantage and inequality, a 'level playing field' might well cause historical inequalities to persist and indeed worsen. Secondly, selecting from those 'who choose to apply' may also cause the lack of diversity to persist. Should there not be some element of the recruitment and selection process that seeks to uncover and address any lack of diversity? These are complex questions which cannot be glossed by invoking a 'level playing field', whatever that may be. That said, the committee was quite clear that quality should never be sacrificed in order to achieve greater diversity.

The Chief Justice takes umbrage at the implication that a Chief Justice might have undue or preponderant influence over the deliberations of the JLSC. What he needs to remember is that while his practice as chairman of the JLSC may be different, the committee was addressing the institution of the JLSC and took note of the ways in which recruitment and selection to the bench had been done in the past.

'Issues raised by the report are serious and complex'

There is nothing in the current structure of the JLSC that would prevent past practice from recurring in the future unless the structure of the commission itself is changed, the criteria for recruitment and selection are codified and published, and mature and independent people are appointed. It is not sufficient to claim that once 'mature and independent' people are appointed, the Chief Justice will not have his way. That is why the committee recommended an expanded structure and at least one appointee made by the Law Association and not by the President, and made strong recommendations on the publication of clear criteria and process for recruitment and selection. After the considerable debate, we settled on the view that the Chief Justice should remain as the chairman of Judicial Appointments Commission since that body would be concerned only with appointments to the judicial branch and not the myriad appointments to the executive branch.

In respect of testing or assessment, the committee agreed with the use of tests but felt that its use should be sensibly restricted. The Chief Justice sought to defend the test process and content now employed by the JLSC. Having myself worked with and around educators over the last few years, I would be less confident than he appears to be about the test process and content, and the commission would be well advised to take counsel from experts in assessment techniques as it relates to job applicants. I am particularly bemused by his insistence on the importance of 'logic' in legal decision-making. But this deserves a wider philosophical debate. On the attendance of applicants at assessment centres, the committee was persuaded that, for several good reasons, applicants for judgeships need to have their applications treated confidentially at least up to the point where the final selections are made. Lawyers may not be special, but judges are!

It is a pity that the Chief Justice and his JLSC, when asked to do so, did not see it fit to provide responses to the detailed questions posed by the committee, many of which related to the question of assessment on which the Chief Justice has now commented with vigour.

While the Chief Justice is somewhat dismissive of the report in stating that “there is nothing there that is new to the debate”, in my view the issues raised by the report are serious and complex, and I hope his extensive, though at times testy critique prompts all stakeholders to read and comment likewise on the report whose recommendations are critical to the reform of the JLSC and ultimately to the integrity of our Judiciary.


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