JUDICIARY IN CRISIS
Whilst the independent press was made aware six weeks ago of the allegations made by Mrs Doris Louis regarding Judge Perera, it chose to keep silent in the hope that the C.A.A. would properly perform its functions by exercising one of the two options given to it under Article 134(2) of the Constitution, where it would either consider that the allegations made did not warrant an investigation, in which case it should have informed the complainant and provided reasons, or, if it considered that the allegations ought to be investigated, appointed a tribunal.
It appears that in Judge Perera’s case the C.A.A. took the view that the allegations were of a serious nature. At that point the tribunal should have been appointed. This did not happen. Instead, the C.A.A. approached Judge Perera and asked him for an explanation of his actions.
The judge readily complied and in giving his “detailed explanation” provided documents and a statement from the stenographer. What he omitted to provide to the C.A.A. but of utmost importance was the tape recording of the proceedings of the 17th October 2006. Be that as it may, the effect of the request made by the C.A.A. and the Judge’s compliance therewith was to make the Judge the investigator of his own misconduct and consequently exposed him to an assault by the Press, effectively making him a “sitting duck” for the Press to take pot-shots at.
If the C.A.A. had properly understood and carried out its role, the crisis currently being faced in the judiciary would not be present. However, the C.A.A. having abdicated its constitutional mandate, the independent press now feels under an obligation to investigate the judge’s actions. The Judiciary, being put under such scrutiny will retaliate by further attempting to muzzle the Press by making huge awards against them. What the judiciary fails to see is that it is due to the failure of the C.A.A. as an institution to properly perform its functions that has thrust the role of investigator upon the Press. Thus, the real culprit in this whole situation is the C.A.A. and not the papers. Indeed, the C.A.A. further fuelled the problem by recommending that Judge Perera be appointed to act as the Acting Chief Justice during Alleear’s long bouts of absence from the jurisdiction. This action by the C.A.A. and the President is contemptuous in the face of the present allegations against Judge Perera.
In a functional democracy as opposed to a failed State, the judiciary as an institution is inviolable and should never have to be put under such pressure. However in
(a) has held judicial office in a court of unlimited jurisdiction; or
(b) is of proven integrity and impartiality to be the next chairman of the C.A.A, or will his appointment only accelerate the degradation of the C.A.A. as an institution and thereby expose it to a potentially damaging petition for judicial review bringing the Press, the Bar and the Judiciary in a head-on collision?
The present crisis in the judiciary is due largely to two reasons: firstly, the quality of the membership of the C.A.A-if those members do not understand their role and function then they cannot properly discharge their responsibilities in regards to the appointment and calibre of judges. Secondly, the political control which has been exerted over the C.A.A. which is supposed to function independently, has also been a contributory factor.
The situation has been further aggravated by the fact that our judges, rather than looking to consolidate their positions within the judiciary have sought to curry favour with politicians. In effect the judges have also allowed themselves to become sitting targets for an angry community that has lost confidence in a judiciary that is dependent upon political patronage. A weak and servile judiciary is susceptible to disintegration under pressure.
In spite of this, there is a way forward. Judge Perera could resign as Bonte has done or alternatively the C.A.A. could appoint a tribunal to investigate the complaint as it was initially supposed to have done. That tribunal could then either exonerate the judge of any wrongdoing or, if it finds that the complaint was warranted, could make the recommendation for his removal. In any case, it would put an end to the matter.
In conclusion, it is sincerely hoped that this debacle will serve as a lesson to the judiciary to exercise impartiality and independence in the performance of their duties as judges.