Justice Sukul and the JSC

Justice Sukul’s disbarment by the Bar of England and Wales earlier this month and his subsequent resignation have raised important questions here about the functioning of the Judicial Service Commission (JSC) which the public has every right to pose.

His disbarment in England would naturally trigger questions here about any indecorous behaviour which would make him unfit to hold his position, bring the local judiciary into disrepute or attenuate public confidence in decisions he might render or panels that he might be a part of. It is, of course, in recognition of this jeopardy that procedures are laid out in the constitution pertaining to the JSC through which a tribunal appointed by the President could examine any impropriety and decide whether there were grounds for removal. Indeed, the duty to act fairly, which is what every litigant expects from the courts would require that one of the justices of the court himself be given a hearing and it is trite law that this should also be applicable to the JSC.  Moreover, in a comment that he gave to Stabroek News, Justice Sukul mounted a  defence of the circumstances that led to his disbarment which seems to be prevenient to an appeal of the Bar of England and Wales decision. It is therefore surprising that he was peremptorily asked by Chancellor of the Judiciary, Justice Carl Singh to resign and has complied.

Once elevated to hallowed positions, in this case the appeal bench, one would expect that the holders would be held to the most exacting standards and wherever a cause arises to doubt this then every available proceeding should be employed in favour of determining where the balance lies.    Audi alteram partem would of necessity required that Justice Sukul be invited to provide an explanation of his circumstances to the JSC prior to any decision to activate recourse to the President for the convening of a tribunal to inquire into the matter and make recommendations.
Even more troubling, since it relates to appointments across the board, is the manner of  the recommendation for Justice Sukul’s appointment and the due diligence that would have been carried out. Justice Sukul was appointed by President Ramotar in July of last year. What the public wants to know and has every right to determine is when Justice Sukul became aware of the fact that he was the subject of a disciplinary proceeding. Was it before he was appointed as a judge of the court of appeal or after? In either case did he communicate this to the JSC, the judiciary or the President? These are important questions which will establish crucial facts about Justice Sukul and his circumstances.

A cursory investigation of Justice Sukul’s background by the JSC would have surely alighted on the proceedings pending against him or alternatively attributes that made him a stellar candidate for the post. Just as the mechanisms of the National Assembly can be enquired into as in the instant budget case, surely the inner workings of the JSC cannot be inscrutable. Therefore, Justice Singh’s declaration to reporters after the CCJ ceremony for Justice Desiree Bernard that a background check “is a matter that engaged the attention of the Judicial Service Commission and we are not open to discussing the methodologies on how we function” is insupportable. In a truly open society and in the best traditions of a liberal democracy, the public has a right to know whether those entrusted with recommending appointees to the bench are following best practice.
In making the announcement on Saturday about the order increasing the number of Puisne judges, Attorney General Mr Anil Nandlall also weighed in on this matter. He said “We trust that those who are endowed with the high constitutional responsibility of recruiting candidates to fill the new vacancies, will discharge this responsibility with due care and circumspection in order to ensure that the new appointees are imbued with the requisite competence and integrity befitting the office to which they seek appointment. In this regard, we hope that quality will never be sacrificed for quantity.”

The saga of Justice Sukul’s appointment and resignation raises another fundamental question surrounding the JSC. How are vacancies on the bench filled? Are there advertisements in the media inviting applications or perhaps the Bar Association is asked to canvas its membership? The question arises as Justice Sukul was appointed after serving for many years at the English Bar. How was it that he or any other person became aware of a vacancy on the bench when there are no evident notices locally on the positions available? Surely like any other service commission, vacancies must be signified to as many of those as possible who are interested in applying.

Often looked open as a model, progressive and ever reforming constitutional society, South Africa’s Judicial Service Commission routinely advertises all levels of vacancies. Nominations have to be accompanied by the nominees’ written consent and a standard questionnaire. Interviews are conducted in public and the media are allowed to be present. The standard questionnaire must be accompanied by the standardised clearance certificate which the candidate must obtain from his or her professional body. A mechanism such as this would be immeasurably helpful in settling the questions surrounding appointments such as those of Justice Sukul. It is worth noting that aside from the provisions on the JSC contained in the South African Constitution, its Judicial Service Commission Act sets out in painstaking detail matters of disciplining and the conduct of its judges.

It is also disturbing that the JSC as it stands is not fully constituted. Ex officio members are presiding over its business whereas the reform of the Burnham constitution envisaged that in addition to these members, the National Assembly would consult and nominate up to two members and another would be appointed following meaningful consultations between the President and the Leader of the Opposition. It is shocking that neither the National Assembly nor the Office of the Leader of the Opposition have had their constitutional obligations discharged particularly in the post-November 2011 climate where both have been struggling to assert themselves and to prevent the diminution of their relevance. This is a matter that should be rectified immediately by the National Assembly instead of its waiting for some type of invitation.

As disconcerting as it has been, the disbarring of Justice Sukul has offered up an irresistible opportunity for the JSC to ensure that its role in setting the stage for the administration of justice is beyond reproach.