OT 402: Letter to the Chairman of the Committee from Anne Wangeci Schofield

 

the powers of the governor of gibraltar for appointment and removal of junior judicial officers in gibraltar in relation to the responsibility of the british government for matters relating to judicial independence

 

I write to you in my capacity as the Convenor of the Human Rights Today Symposium which as stated has been held in the Cayman Islands, Gibraltar and Kenya with the 2010 conference being scheduled to be held in Washington DC. The delegates to the Symposium include chief justices, judges, magistrates, parliamentarians, members of Government, lawyers, legal academics and civil society working in the promotion of human rights.

 

The Symposium brings together delegates to exchange ideas and experiences on the human rights challenges that we face today. From its inception, the Symposium has covered judicial independence as a corner stone for the Rule of Law, Good Governance and democracy. On the 15 of December the world celebrated Democracy Day. Many great speeches were made about successes and failures. One of the recurring themes was accountability.

 

In the Symposium we include Parliamentarians recognising the Role of Parliament in protecting and promoting human rights, the mandate of Parliament to call the Executive to account for its actions and to ensure laws passed by Parliament are respected by the Executive.

 

May I draw your attention to the praises heaped on the Kenyan Parliament for finally rising to their role by supporting a Report by the Justice and Legal Affairs Committee of Parliament which found that the President breached the Economic Crimes Act by bypassing the Anti Corruption Board and Parliament who have power under the Act to select and recommend the Appointment of the Director and Assistant Directors of the Anti Corruption Commission.

 

Whilst Parliament has its ways of ensuring the Executive respects the Rule of Law an independent judiciary plays a key role in adjudication and ensuring the Rule of Law is followed.

 

The British Government is a great advocate for an independent judiciary around the Commonwealth and indeed in my own country has been very vocal in the struggle to clean up and rebuild an independent Judiciary. In the UK we have seen many changes through the Reform Act which have enhanced judicial independence including the transparency of the appointment process of judges to ensure meritocratic system is in place doing away with the old system where judges were appointed through a secretive system. The UK Government recognises the importance of an Independent Appointments Board and indeed judicial posts are now advertised. The setting up of a Supreme Court is an example of the recognition that the House of Lords Judges must be seen to be separate from the political arm of the House of Lords.

 

The British Government has international obligations under the United Nations Charter for Human Rights, The United Nations Basic Principles on the Independence of the Judiciary, The European Commission for Human Rights, The Bangalore Principles, and The Commonwealth Principles on the Relationship Between the Three Branches of Government as Agreed by Law Ministers and endorsed by the Commonwealth Heads of Government Meeting , Abuja 2003.

 

One of the Challenges that we face today with regard to Judicial Independence is the failure by Commonwealth Governments to adhere to International Conventions and indeed Principles such as the Commonwealth Principles. Whilst in the UK the British Government has followed the spirit of the Principles it has failed to ensure the Principles are followed in some Overseas Territories and in Particular Gibraltar. I wish to draw your attention to the position in Gibraltar.

 

The Constitution Order in Council 2006 enhanced judicial independence by creating a Judicial Service Commission with the President of the Court of Appeal as Chairman, the Chief Justice and Stipendiary Magistrate as members and four other appointees, two recommended by the Governor and two by the Chief Minister. The Judicial Service Commission advises the Governor in the Appointments of a Chief Justice, judges of Appeal, magistrates, justices of the peace, the Registrar and other junior judicial officers as well as with regard to removal and discipline.

 

In exercise of his powers the Governor of Gibraltar Sir Robert Fulton appointed the Chief Secretary, the Deputy Governor, the Attorney General and Mr James Neish as members of the Commission. The Chief Secretary and Mr Neish were recommended by the Chief Minister. Mr Neish is a well known friend of the Chief Minister and the Chief Secretary works under the Chief Minister. The first Secretary to the Commission was Mr Dicky Armstrong the Chief Ministers brother in law who is also the Deputy Chief Secretary. Mr Armstrong was later replaced by Mr Michael Llamas. Mr Llamas works under the Chief Minister with the Secretariat based in the Chief Minister's Office despite Gibraltar having a Minister for Justice. A search on the Internet or the directory in Gibraltar does not reveal the address or location of this office. The public ought to know where it operates from and who are the officers manning it particularly as regards complaints against members of the judiciary. There is evidence to show that the Secretariat is in 6 Convent Place as Mr Llamas back up during the Tribunal proceedings including against the Chief Justice included a Ms Canepa who works from No 6 Convent Place, in the Chief Ministers Office. According to answer given to Parliament Mr Llamas earned over £178,000 in 2008. Mr Llamas is shown as carrying out drafting work which falls under the Chief Ministers Office and also undertakes other Government legal work.

 

Subsequent to the Order in Council which enhanced internal self Government in Gibraltar, the Chief Minister introduced in Parliament the Judicial Service Bill which became law on 5^th July 2007. Section 6 of the Act created the Office of President of the Courts with overall responsibility for Gibraltar. This provision was opposed by the Opposition. The suspended Chief Justice has argued that the Office of Chief Justice is established under the Constitution Order in Council and was indeed created in 1877 and defined by an 1888 Order in Council. This is an issue which hopefully the Privy Council will consider and is sub judice.

I attach an article in the Chronicle[1] publishing a letter which I sent to the Editor of the Chronicle prior to the Opening of the Legal Year. The only response came from the Attorney General of Gibraltar who despite my letter raising serious issues pertaining judicial independence chose to refer to my letter as " drums of war". I attach the report from the Chronicle.[2]

 

Mr Chairman members will note from the Judicial Service Act that section 21 of the Judicial Services Act gives the power to Advise the Governor upon the making and confirming of appointments to the Judicial Service Commission. Section 22 provides that when playing its role under section 21, sections 22(2) and 22 (3) apply.

 

These sections provide as follows:

 

"(2) Selection for recommendation must be solely on merit,

(3) A person must not be selected for recommendation unless the Commission is satisfied that he is of good character."

 

Section 23 provides that the Minister for Justice may issue guidelines about procedures for the performance by the Commission of its functions of

 

(a) identifying persons for the selection and

 

(b) assessing such persons for the purpose of selection.

 

Section 23 provides for the Minister to place such guidelines before Parliament for approval. I accept that the provision does not make it mandatory for the Minister to place guidelines before Parliament. The Minister for Justice under section 4 is required to protect judicial independence and has indeed taken an oath of office in Parliament.

 

However, for section 22 to be effective to ensure appointments are on merit, procedures should include advertisements and transparent process to give opportunities to other people in Gibraltar who may aspire to judicial office. It would also enhance judicial independence to ensure judicial officers are not beholden to any individual for their appointments and are protecting from owing anybody any favour.

 

It is also important that any person appointed to the Office of Chief Justice is of good character. The Gibraltar Government, two members of the Commission (the Chief Secretary and the Attorney General) were witnesses in seeking the removal of the Chief Justice on matters dating to 1999 and 2000. The appointment of the Chief Justice should be transparent to ensure persons with skeletons in their cupboard are not appointed to such a high office.

 

Gibraltar intends to appoint a third judge as well as a Chief Justice. in the event the position is vacant after the decision of the Privy Council in the next few weeks. I would ask the Chairman to seek clarification from the Foreign Secretary as to what procedures will be followed to ensure independence of the Appointment Process.

 

Section 27 of the Judicial Service Act is clear that the Commission must determine the selection process and apply the process before making any selection. May I ask the Committee to seek a response to the question as to whether section 27 has been acted upon or whether there has been a breach of the law by the very body vested with the power to ensure an independent process. If the process is not in place may I ask whether the British Government through the Governor intends to ensure that a process is in place before requesting for Advice on appointments. That the vacant posts will be advertised to allow those Gibraltarians from the Bar interested in judicial careers to be judged on merit.

 

I am more concerned that the Order in Council gave the Governor powers to reject recommendations of the JSC for appointment or reappointment if he considers it is not in Her Majesty's interest. This is a dangerous provisions as it allows a veto without defining Her Majesty's interests. Do Her Majesty's interests include making sure judges who speak out on judicial independence are not appointed, judges who will not toe the line are not appointed? And furthermore who would advise the Governor on Her Majesty's interest the Attorney General who is a member of the JSC, or the Foreign Office who are the Executive.

 

May I draw your attention to the provisions of section 32(1) of the Judicial Service Act. They provide that The President of the Courts in consultation with the Chief Justice and the Chairman of the Bar Council "shall draw up and propose to the Commission a draft code of Judicial conduct and ethics for application to persons holding or acting in any judicial office in Gibraltar.... .

 

"Section 32(2) provides

 

"The Commission shall consider the Draft Code and any proposed modification to a Code, and after amending or modifying it and if it shall consider appropriate, shall adopt it subject to subsection (5) below."

 

Subsection (3) provides,

"Upon adopting the draft Code or any draft Code or any modification of a Code, the Commission shall deliver it to the Minister."

 

Subsection 4 provides :

"The Minister shall upon receipt of the Code or any proposed modification thereof lay the same in the Parliament after the expiration of such 30 day period and shall move a Motion inviting Parliament to consider and approve such a Draft Code."

 

Subsection 5 provides for the publication of the Draft Code in the Gazette as soon as possible. It is a requirement of the law under subsection 6 for the Commission to have full regard of the Code when Advising the Governor as regards any removal or disciplinary proceedings involving junior judicial officers.

 

Since 5^th July 2007, a Code of Conduct has not been published. There has been a clear unexplained failure to publish the Code.

 

My concern is the vacuum created by the failure to implement the law. It means a judicial officer can face an investigation for frivolous allegations which may fall outside the Code of Conduct. Investigations destroy the moral and lives of judicial officers. The law also protects judges and junior officers from witch hunts.

 

In the light of the composition of the Judicial Service Commission which is Government heavy I would ask you to seek clarification as to why the law has not been followed and an assurance that a Code will be put in place before the Governor of Gibraltar exercises any Constitutional powers on removal of junior judicial officers or discipline. There is a reason why the UK and other Commonwealth countries have put in place Codes of Judicial Conduct. It is to ensure public confidence in the judiciary but also to protect judicial officers from selective investigations and being hounded out of office.

 

The removal of a judge is important in protecting security of tenure and maintain public confidence in the judiciary. The United Nations Principles on the Independence of the Judiciary cover appointments and removal as a cornerstone of judicial independence.

 

I invite this Committee to request the Foreign Secretary to enquire whether the President of the Courts, the Judicial Service Commission and the Minister have ignored the law and if so whether the British Government intends to follow its international obligations and ensure the law is followed by their representative in Gibraltar.

Failure of the British Government to act would be duplicitous when one considers the praise heaped on the Kenya Parliament. We must practise what we preach and there cannot be one law for the UK citizens and one for Overseas Territories. In this country the Lord Chief Justice would be called to account. The President of the Court is appointed by the representative of the British Government in Gibraltar and with the Advice of the Foreign and Commonwealth Office. I humbly request the Foreign Affairs Committee to request FCO to seek clarification from the Governor, the British Government Representative as to whether he considers it appropriate to act on appointments and disciplinary matters on the Advice of the Judicial Service Commission when the procedures laid down by law have not been followed.

 

I make these representations in my capacity as a Human Rights lawyer with experience of Gibraltar and its system. These representations are made as a matter of public interest in a jurisdiction which many would be available to raise these point. I consider I may be a lone voice in the struggle to ensure that decolonisation Gibraltar does not take a downward slope as has happened in many former colonies when it comes to the Rule of Law and judicial independence.

 

As usual I act according to my conscience believing that silence in such glaring failures amounts to complicity.

 

I would ask the Chairman to take up the matters raised with the Foreign Secretary to ensure appointments being made now or soon, or disciplinary proceedings are conducted according to law and in conformity with international principles. If the law is followed then I have done my duty as a member of the public. There are those in Gibraltar who argue I have no right to speak out and make representations. My position is clear that I have a right to freedom of speech on matters of such public interest as independence of the Judiciary and the Rule of Law.

 

 

23 September 2009

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[1] Not published.

[2] Not published.