Editorial | Searching for Justice Batts’ error

In March, when Seymour Panton, a retired president of the Court of Appeal, publicly commented on the merits of a case that was being adjudicated upon – the Trafigura matter that was being heard by the Privy Council – this newspaper felt that he had crossed a bridge too far. We called for at least a debate on a code of conduct for retired judges.

Our position of principle was that although Justice Panton was no longer on the bench and the Privy Council sits in London, his pronouncement could be perceived, unwittingly or otherwise, as an attempt to influence the outcome of the matter. The Privy Council, when it hears cases from Jamaica, as the final rung of appeal, is an extension of the Jamaican judicial system, recognised as such by the island’s Constitution.

Justice David Batts’ recent letter to The Gleaner about judges’ salaries, which fired the angst of, and earned a reprimand from Chief Justice Bryan Sykes, is all together a different kettle of fish. But it is an opportunity to put back on the table the issue raised after Justice Panton’s injudicious intervention in the Trafigura matter (he characterised as “time-wasting nonsense” the challenge by five People’s National Party members to a ruling by the Court of Appeal), as well as propose broader discussion of what limits to free speech that ought to be placed on judges.

The cause of Chief Justice Sykes’ disquiet was that Justice Batts, in the first place, felt compelled to highlight what the judge felt was The Gleaner’s incomplete reporting on Parliament’s approval of pay hikes of between 0.4 per cent and 5.7 per cent for judges, depending on where a judge stood in the system. Worse, Justice Batts appeared to have defied the chief justice by going public, though making it clear that he spoke solely on his own behalf.

UNLIKELY TO BE PROMOTED

It is common ground, however, that David Batts is one of those justices who is unlikely to be promoted high up the judicial ranks. He is a bright and thoughtful jurist, who, unlike most of his peers, came to the bench from the private Bar and with a background in human-rights advocacy and activism – which often shines through in his ruling. And there is a sense that he is fiercely independent. In 2010, for instance, while still at the private Bar, he publicly called out the Golding administration for failing to extradite the west Kingston strongman and Jamaica Labour Party activist, Christopher Coke.

It is hardly surprising, in the circumstances, that he pointed out that the salary increase taken to the House by the finance minister, Nigel Clarke, bore no relationship to what was recommended by the commission on judicial salaries established in 2019, as is required to be done from time to time. Added Justice Batts: “In a democracy, an independent judiciary is necessary if the rule of law is to be maintained. This is so because when issues arise between the citizen and the State, or between citizens of unequal economic strength, the judges must be able to decide those issues without fear or favour. One important ingredient in that independence is the economic well-being of the judge.”

However, in a circular to judges, Chief Justice Sykes suggested that Justice Batts had stepped out of bounds. “Many judges may feel strongly about something, but it cannot be that judicial officers should feel that they can simply write a letter to the press, should they take the view that is what is desirable,” the chief justice said.

He conceded that there was no “hard law’’ governing such actions by judges, but suggested that convention imposed restraints. He also argued that Justice Batts’ decision to go public, despite the CJ’s advice to the contrary, undermined the authority of the chief justice.

It is, however, not clear what specific code of judges’ conduct – guidelines to which are outlined in a 2012 document – Justice Batts may have breached, or came so close to crossing, to cause the chief justice such disquiet. Indeed, that 2012 Guide to Judicial Conduct affirms judges’ right to free speech, saying at 4.7: “Judges, like all other citizens, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, judges should always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.”

TRESPASS ON DIGNITY

In the absence of further and better particulars, we perceive nothing in Justice Batts’ letter that would trespass on the dignity of his office or would be construed to be undermining of the impartiality or independence of judges.

If the chief justice’s concern is that Justice Batts may have entered the political thickets, it was not a partisan venture. It was in defence of a critical foundation of our democracy, the separation of powers between the judiciary and the executive and to note how the independence of the former can be undermined by the economic (in)actions of the latter.

Jamaican judges have not been afraid of asserting the judiciary’s independence and of issuing warnings when that independence faces threats. In February 2018, for instance, when Prime Minister Andrew Holness purported to place Justice Sykes on probation, 97 judges issued a statement making their displeasure known.

They said: “By his unfortunate comments the honourable prime minister, the head of the executive branch of Government and a member of the legislature has sought to place the head of the judiciary, a separate and equal arm of Government, under his supervision, direction and control, and subject to a process of evaluation by him. This is clearly inappropriate and in breach of the fundamental doctrine of the separation of powers. We ask the prime minister to retract his statements and to publicly acknowledge that the chief justice is not answerable to him.”

That declaration, with which few outside the executive took offence, was a far heavier and deeper tramp into the political weeds than Mr Justice Batts’ letter. In any event, we now have cause to discuss the tone and latitude of judicial conduct.