Wed | Sep 30, 2020

Editorial | Greater transparency in the courts welcomed

Published:Thursday | August 6, 2020 | 12:05 AM

THERE IS much in Chief Justice Bryan Sykes’ statement on Tuesday with which this newspaper agrees, including his mild upbraiding of the attorney general, Marlene Malahoo Forte – who he referred to neither by name nor title – and his reminder to the press that truth and facts are the raison d’etre of their enterprise. Not that we have ever forgotten.

However, as Justice Sykes partially conceded, in tangential fashion, the judiciary often does not help the press, or itself, in delivering on these goals, or in ensuring that the public is afforded the best possible information in which both sides share an interest. In this regard, we look forward to the chief justice’s promised “media protocol”, covering who will speak on behalf of the judiciary. The protocol ought not to be another of those judicial labyrinths – windy, slow and difficult to traverse.

At the same time, we hope that the chief justice’s pronouncement on the behaviour he expects from lawyers is not interpreted by others as an opening to a return of the old days of the excessive use of sub judice rule, which attacks transparency, limits people’s engagement with their courts and, ultimately, weakens democracy. Nothing, of course, in Justice Sykes’ past behaviour causes us to believe this is his intent, or that it is something he would tolerate.

Justice Sykes’ statement came after a trying few weeks for the judiciary, culminating in the ongoing public pummelling of three of his justices – Sonia Bertram Linton, Nicole Simmons and Evon Brown – over what this newspaper feels was a callow and constricted interpretation of the constitutional rights, which caused them to side with a primary school that sought to exclude a child with locked hair, on the basis that the hair could possibly become unhygienic. Before that was the media’s misreporting of a judge’s order regarding five men locked up for several months under state of emergency regulations. The initial reporting was that the court had held the detentions to be unconstitutional, rather than that the judge had agreed to habeas corpus hearings.

Apparently, this misreporting was the basis of a broadside – subsequently walked back – by Mrs Malahoo Forte against judges, some of whom, she said in a series of tweets, put aside the law, “procedurally and sometimes substantially”, in deciding the cases.

This newspaper believes that in the absence of more, the attorney general, if she did not do so, came close to crossing the line between legitimate and principled criticism of the courts and a callous and arbitrary attack on the judiciary, which, as Justice Sykes remarked, would not have “enhance[d] confidence in legal processes”.

“Judges,” the chief justice insisted in his statement, “have been, and are committed to, deciding cases without fear, favour, malice or ill-will, based on the law, evidence, and submissions presented before the court, and not opinion, regardless of the eminence of the person from whom that opinion comes.”

Of course, the attorney general, whose office is a party to the case that triggered her criticism, was in a better position than journalists to know the facts of the court’s order. But the matter, as Justice Sykes obviously appreciates, underlines the need for a robust and responsive communications system in the courts.

Indeed, the clarification of the judge’s order by the Court Administration Division, which has a communication and information unit, was slow and late.

Not only should decisions be posted immediately upon delivery, but so, too, should summaries of these rulings, as well as verbal orders delivered in court. This would add to the transparency of the judicial system, thus limiting the possibility for misinformation, sometimes from lawyers, that might bring the judicial system, as Justice Sykes fears, into disrepute. It would also lend to his mission of making Jamaica’s judicial process “the best in the region and ... among the best in the world”.

Transparency, including deepening the judiciary’s engagement with the public – against the aloofness of the past – would help in people’s understanding of what judges do, how they do it, and why. It would also contribute to a more informed discourse, rather than threatening abuse, about which the chief justice complained, when citizens disagree with court rulings.