STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT

THE REPUBLIC OF TRINIDAD AND TOBAGO STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT A publication of the Judicial Education Institute of Trinidad and Tobago

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT

Judiciary of the Republic of Trinidad and Tobago, 2017 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, any information storage or retrieval system, or on the internet, without permission in writing from the publishers. Produced for the Judiciary of the Republic of Trinidad and Tobago by: ISBN (e-book) 978-976-8255-39-6 ISBN (softcover) 978-976-8255-38-9

FOREWORD Article 19 of the Universal Declaration of Human Rights, proclaimed on the 10 th December, 1948 provides that, Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal The 1976 Republican Constitution of Trinidad and Tobago recognises in its Preamble that men and institutions remain free only when freedom is founded upon respect for the rule of law. The Constitution goes on to enshrine as a fundamental right the right of every individual to equality before the law and the protection of the law and declares that every person is entitled to "a fair hearing in accordance with the principles of fundamental justice and by an independent and impartial tribunal (Sections 4(b) and 5(2) (e) and (f) of the Constitution of Trinidad and Tobago). Between April 2000 and November 2008, a United Nations led initiative, under the auspices of the Judiciary Integrity Group, in an effort to bolster public confidence in judicial systems globally, facilitated the creation of Principles for Judicial Conduct that identified six core judicial values

essential for earning and retaining public trust and confidence in judicial systems. Those six values are as follows: independence, impartiality, integrity, propriety, equality, and competence and diligence. These core values were agreed upon at the meeting of the Judicial Integrity Group held in Bangalore, India in February 2001. They became the backbone of what emerged in final discussions in November 2002 and, owing to this, they have been recognised and known since as the Bangalore Principles of Judicial Conduct. In April 2003, the United Nations Human Rights Commission (UNHRC) endorsed the Bangalore Principles of Judicial Conduct, considered amongst common law and civil law jurisdictions as the authoritative statement on the values that should inform judicial conduct. Following this, in 2007, the UNHRC published the Bangalore Principles together with a commentary that elaborated on each principle. In the Preface to the UNHRC Commentary, it is noted: A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Further, in relation to the Bangalore Principles of Judicial Conduct, it is

stated: these principles give expression to the highest traditions relating to the judicial function as visualised in all cultures and legal systems. The importance of a judicial code of ethical conduct for Caribbean judiciaries was specifically addressed at the 9 th Meeting of Caribbean Heads of Judiciary in Port of Spain, Trinidad, whereby, on June 5 th -6 th 2008, the following statement formed part of the Meeting s Communique: Appropriate standards of ethical conduct for Judicial Officers should be adopted by all Judiciaries of the Caribbean and such guidelines should be published and made available to all members of the Judiciary and to members of the public. Amidst these developments, the process for creating a code for judicial conduct in the Republic of Trinidad and Tobago was initiated in February 2000 at a meeting of judges under the former Chief Justice, The Honourable Mr. Justice Michael de la Bastide T.C. P.C. Q.C. In November 2011, following a process of wide consultation, the Republic of Trinidad and Tobago s Statements of Principle and

Guidelines for Judicial Conduct was finalised and placed on the Judiciary of Trinidad and Tobago s website. These Guidelines, which incorporate the Bangalore Principles of Judicial Conduct adapted to local conditions, and are shaped by the Canadian Judicial Council s Ethical Principles for Judges, are pivotal in the Judiciary s continuous efforts to strengthen public trust and confidence in our judicial system. They are essential to the facilitation of the integrity of our nation s judicial system, owing to their insistence on the highest standards of judicial virtue. We hope that they will serve both as a foundation for excellence and an instrument for achieving judicial compliance with the demands of the rule of law. It is my pleasure to formally publish Trinidad and Tobago s Statements of Principle and Guidelines for Judicial Conduct and, in doing so, join our fellow Caribbean states in enabling ease of access to the core judicial values for our nation s Judges, masters, registrars and magistrates, and indeed for all judicial officers and members of the public alike. The Honourable the Chief Justice Mr. Justice Ivor Archie O.R.T.T.

TABLE OF CONTENTS 1. PREAMBLE 2 2. DEFINITIONS AND INTERPRETATION 4 3. JUDICIAL INDEPENDENCE 6 4. INTEGRITY 14 5. PROPRIETY 18 6. IMPARTIALITY 46 7. EQUALITY OF TREATMENT 58 8. COMPETENCE AND DILIGENCE 62

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO 1

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT PREAMBLE WHEREAS the Constitution of the Republic of Trinidad and Tobago recognises and upholds the rule of law and the principles of fundamental justice; AND WHEREAS the said Constitution recognises as fundamental the right of every individual to equality before the law and the protection of the law, and to a fair and public hearing by an independent and impartial tribunal; AND WHEREAS an independent, impartial, competent and effective judiciary is essential to the maintenance of the rule of law and for ensuring good governance; AND WHEREAS public acceptance of the moral authority and integrity of the judiciary contributes to the maintenance of the rule of law and the promotion of good governance; AND WHEREAS it is essential that Judges, individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain trust and confidence in the judicial system; 2

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO AND WHEREAS the Statements of Principle and Guidelines herein conform with the six values succinctly stated in the Bangalore Principles of Judicial Conduct endorsed by the United Nations Human Rights Commission at Geneva. NOW, THEREFORE, the following Statements of Principle and Guidelines are intended to provide guidance to judges and all other judicial officers and to afford the Judiciary a framework for regulating judicial conduct. They are also intended to assist members of the public to better understand the judicial role and to have objective criteria upon which to assess judicial conduct. They are, however, not, and shall not be used as, a code or list of prohibited behaviours defining judicial misconduct under section 137 of the Constitution. 3

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT DEFINITIONS AND INTERPRETATION 1. Definitions In these Statements of Principle and Guidelines, unless the context otherwise permits or requires, the following meanings shall be ascribed to the words used: a. Court staff refers to the staff of the Judge; including judicial support officer, assistant judicial support officer, usher/orderly, secretary, judicial research counsel assigned to the Judge and all staff used by the judge and any other person assigned to assist the Judge; b. Judge includes the Chief Justice, Judge of the Supreme Court, Master of the High Court, Registrar of the Supreme Court and Magistrate; c. Judge s family refers to a Judge s spouse, the Judge s former spouse, the Judge s son, daughter, son-in-law and daughter-in-law. It also 4

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO includes any other close relative or person who is a companion or employee of the Judge and who lives in the Judge s household; d. Judge s spouse includes a domestic partner of the Judge or any other person in a close personal relationship with the Judge. 2. Interpretation Any reference in these Statements of Principle and Guidelines to persons include male and female persons. 5

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT I. JUDICIAL INDEPENDENCE Statement of Principle JUDICIAL INDEPENDENCE IS A PRE-REQUISITE TO THE RULE OF LAW AND A FUNDAMENTAL GUARANTEE OF THE CONSTITUTIONAL RIGHT TO A FAIR TRIAL. A JUDGE SHALL THEREFORE UPHOLD AND EXEMPLIFY JUDICIAL INDEPENDENCE IN BOTH ITS INDIVIDUAL AND INSTITUTIONAL ASPECTS. Guidelines 1.1 A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law and free of any direct or indirect extraneous influences, inducements, pressures, threats or interference from any quarter or for any reason. 6

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO 1.2 In performing judicial duties, a judge shall, within the judge s own court, be independent of judicial colleagues in respect of decisions which the judge is obliged to make independently. 1.3 A judge must firmly reject any attempt to influence his decisions in any matter before the court outside the proper process of the court. 1.4 A judge shall not only refrain from inappropriate connections, and influence by the executive and legislative branches of government, but also must appear to the reasonable observer to be free of such. 1.5 A judge shall encourage and uphold arrangements and safeguards for the discharge of judicial duties, in order to maintain and enhance the institutional and operational independence of the judiciary. 1.6 A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence in our democratic society. 7

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT 1.7 Judges individually and collectively should protect, encourage and defend judicial independence. Commentary 1. In order that the integrity and the independence of the Judiciary may be preserved, a Judge shall observe high standards of conduct. Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favour. 2. Judicial independence is a constitutional right of all members of society. Independence of the judiciary refers to the necessary individual and collective or institutional independence required for impartial decisions and decision making. 1 Judicial independence thus characterises both a state of mind and a set of institutional and operational arrangements. 1 S. Shetreet, Judges on Trial, (1976) at 17. 8

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO 3. Both individual and institutional relationships are involved in the concept of judicial independence: a. The individual independence of a judge is concerned with the judge s impartiality in fact, that is his state of mind or attitude in the actual exercise of the judicial function. This is reflected in such matters as security of tenure. b. Collective/institutional independence is concerned with defining the relationships between the judiciary and others, particularly the other branches of government, so as to assure both the reality and the appearance of independence and impartiality. Judicial independence also involves the institutional independence of the court or tribunal over which the judge presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government. Judicial independence is a status or relationship resting on objective 9

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT conditions or guarantees, which directly speaks to the inability of the executive and legislative arms of government to alter the terms and conditions of the judge s office to the disadvantage of the judge. The Statements of Principle and Guidelines deal with aspects of judges ethical obligations as regards both their individual and collective independence. 4. The first qualification of a judge is the ability to make independent and impartial decisions. The judge s duty is to apply the law as he or she understands it without fear or favour and without regard to whether the decision is popular or not. This is a cornerstone of the rule of law. 5. Judges must reject improper attempts by litigants, politicians, officials or any other persons to influence their decisions. They must take care that communications with such persons that judges may initiate could not raise reasonable concerns about their independence. Regardless of the source, ministerial, 10

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO journalistic or other, all such efforts must, of course, be firmly rejected. 6. Judges are not restrained from consulting with colleagues when challenging legal issues arise since this is important in the maintenance of uniformity and standards. In the performance of judicial activities, however, a judge shall be independent of judicial colleagues and solely responsible for his decisions. 7. Public confidence depends upon the rule of law and the independence of the judiciary. Lapses and questionable conduct by judges tend to erode that confidence. Public acceptance of and support for court decisions depend upon public confidence in the integrity and independence of the bench. Judges, therefore, share a collective responsibility to promote high standards of conduct. 8. Care must be taken not to risk trivialising judicial independence by invoking it indiscriminately in opposition to any proposed change in the operational or institutional arrangements affecting the judiciary. 11

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT Judges should be vigilant with respect to any such attempts to undermine, and should be staunch defenders of, their own institutional and operational independence. The form and nature of the defence must be carefully considered. 9. Public education with respect to the judiciary and judicial independence is an important function. Judges, therefore, should take advantage of appropriate opportunities to help the public understand the fundamental importance of judicial independence. 12

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STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT II. INTEGRITY Statement of Principle INTEGRITY IS ESSENTIAL TO THE PROPER DISCHARGE OF THE JUDICIAL OFFICE AND IS VITAL TO MAINTAINING PUBLIC TRUST AND CONFIDENCE IN THE JUDICIARY. Guidelines 2.1 A judge shall ensure that his conduct is above reproach in the view of reasonable fair-minded and informed persons. 2.2 The behaviour and conduct of a judge must reaffirm the people's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. 2.3 A judge, in addition to observing personally the standards of these Statements of Principle and 14

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO Guidelines, shall encourage and support their observance by judicial colleagues and others. Commentary 1. An effective judicial system is essential to public confidence in and respect for the Judiciary and, ultimately, to democracy founded on the rule of law. Many factors, including unfair or uninformed criticism, or simple misunderstanding of the judicial role, can adversely influence public confidence in and respect for the judiciary. Another factor which is capable of undermining public respect and confidence is the conduct of judges, in and out of court, demonstrating a lack of integrity. Judges should strive therefore to conduct themselves in a way that will maintain public respect and confidence in their integrity, impartiality and good judgment. 2. The ideal of integrity is easy to state in general terms, but it is much more difficult and perhaps even unwise to be specific. Conduct which constantly reflects fitness to undertake the responsibilities of judicial office is the ultimate standard for integrity. The judge 15

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT should exhibit respect for the law and integrity in his private life. The judge should avoid the appearance of impropriety. 3. Judges, too, have private lives and should enjoy, as much as possible, the rights and freedoms of citizens generally. Legal standards frequently call for the application of the reasonable person test. Judicial factfinding, an important part of a judge s work, calls for the evaluation of evidence in light of common sense and experience. Therefore, judges should, to the extent consistent with their special role, remain closely in touch with the public. The judge s personal development and the public interest will not be served if judges are unduly isolated from their communities. An out-of-touch judge is less likely to be effective. 4. A judge s conduct, both in and out of court, is bound to be the subject of public scrutiny and comment. Judges must therefore accept some restrictions on their activities even activities that would not elicit adverse notice if carried out by other members of the community. Judges need to strike a delicate balance between the requirements of judicial office and the 16

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO legitimate demands of the judge s personal life, development and family. 5. In addition to judges observing high standards of conduct personally they should also encourage and support their judicial colleagues to do the same, as questionable conduct by one judge reflects on the judiciary as a whole. 17

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT III. PROPRIETY Statement of Principle PROPRIETY AND THE APPEARANCE OF PROPRIETY ARE ESSENTIAL TO THE PERFORMANCE OF ALL THE ACTIVITIES OF A JUDGE, BOTH ON AND OFF THE BENCH. Guidelines Judicial Activities 3.1 A judge shall avoid impropriety and the appearance of impropriety in all of the judge s activities. 3.2 A judge shall conduct himself in a way that is consistent with the dignity of the judicial office. 3.3 A judge should avoid close personal association with individual members of the legal profession, particularly 18

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO those who practice in the judge s court, where such association might reasonably give rise to the suspicion or appearance of favouritism or partiality. 3.4 Save in exceptional circumstances or out of necessity, a judge shall not participate in the determination of a case in which any member of the judge s family represents a litigant or is associated in any manner with the case. 3.5 A judge shall not permit the use of the judge s residence by a member of the legal profession to receive clients or other members of the legal profession. 3.6 A judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. 3.7 A judge shall refrain from conduct such as membership of groups or organizations or participation in public discussion which, in the mind 19

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT of a reasonable, fair-minded and informed person, might undermine confidence in the judge s impartiality. 3.8 A judge shall, upon appointment, cease all partisan political activity or involvement and shall refrain from conduct that might give rise to, in the mind of a reasonable, fair-minded and informed person, the appearance that the judge is engaged in political activity. 3.9 A judge shall refrain from: a) Membership of political parties; b) Political fund-raising; c) Attendance at political fund-raising events; d) Contributing to political parties or campaigns; e) Taking part publicly in controversial discussions of a partisan political character; 20

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO f) Holding any office in a political organization; g) Making speeches for a political organization or candidate or publicly endorsing a candidate for public office; and h) Soliciting funds for a party or candidate or purchasing tickets for political party dinners or other functions. 3.10 A judge shall resign from office before he becomes a candidate for election to Presidency or political office or is appointed to political office. 3.11 A judge shall not allow the judge s family, social or other relationships improperly to influence the judge s judicial conduct and judgment. 3.12 A judge shall not use or lend the prestige of the judicial office to advance his private interests or those of a member of the judge s family or of anyone else, nor shall a judge permit others to convey the impression that anyone is in a special position to influence the judge in the performance of judicial duties. 21

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT 3.13 A judge shall not testify voluntarily as a character witness. A judge may testify as a witness in a criminal proceeding if the judge or a member of the judge s family is a victim of the offence or if the defendant is a member of the judge s family or in other exceptional circumstances. 3.14 Subject to the proper performance of judicial duties, a judge may engage in (extra judicial) activities such as (but not limited to): a) Speaking, writing, lecturing, teaching and participating in activities including but not limited to those concerning the law, the legal systems, the administration of justice and related matters; b) Appearing at a public hearing before any body concerned with matters relating to the law, the legal system and the administration of justice or related matters; or c) Serving as a member of any body devoted to the improvement of the law, the legal 22

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO system, and the administration of justice or related matters. 3.15 A judge may speak, write, lecture, teach and comment publicly on non-legal subjects and engage in historical, religious, educational, cultural, sporting or other social and recreational activities, if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties in accordance with these Guidelines. Non-Judicial Activities I. Civic and Charitable Activities 3.16 A judge may participate in civic and charitable activities that do not reflect adversely on the judge s impartiality or interfere with the performance of judicial duties. 3.17 A judge should generally not be directly involved in fund-raising or membership solicitation, but may solicit funds from judicial colleagues for appropriate purposes. 23

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT 3.18 A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members. 3.19 A judge should generally not give legal and/or investment advice for reward. Financial Activities 3.20 A judge may hold and manage appropriate personal and/or family investments. 3.21 A judge shall refrain from financial and/or business dealings which tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, exploit judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves. 3.22 A judge shall manage his investments and other financial interests so as to minimise the number of cases in which he is disqualified. A judge should 24

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO divest himself of investments and other financial interests that might require frequent disqualification. 3.23 A judge and members of the judge s family, shall neither ask for, nor accept, any gift, bequest, loan, or favour in relation to anything done or to be done or omitted to be done by the judge in connection with the performance of judicial duties. 3.24 A judge shall not knowingly permit court staff or others subject to the judge s influence, direction or authority, to ask for, or accept, any gift, bequest, loan, or favour in relation to anything done or to be done or omitted to be done in connection with his duties or functions. 3.25 A judge and the members of his family residing in his household should exercise care in accepting any gift, bequest, loan, or favour from anyone. A judge may accept: a) a gift incident to public testimonial to him; b) books supplied by publishers on a complimentary basis for official use; 25

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT c) an invitation to the judge and his spouse to attend a Bar-related function or activity devoted to the improvement of the law, the legal system or the administration of justice; d) ordinary social hospitality; a gift, bequest, favour, or loan from a relative or close friend; a wedding or engagement gift; e) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; f) a scholarship or fellowship awarded on the same terms applied to other applicants; or g) any other gift, bequest, favour or loan only if the donor is not a party or other person whose interests has come or is likely to come before him. 3.26 For the purposes of this section members of his family residing in his household means spouse, 26

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO relative of a judge by blood, adoption or marriage, or a person treated by a judge as a member of his family, who resides in his household. 3.27 A judge shall not be required by these Guidelines to disclose his income, assets, investments, debts, or liabilities. 3.28 Confidential information acquired by a judge in his judicial capacity shall not be used or disclosed by the judge in financial dealings or for any other purpose not related to the judge s judicial duties. Fiduciary Activities 3.29 A judge shall not serve as the executor, administrator, trustee, guardian or other fiduciary, except for the estate, trust or person connected with a member of the judge s family and then only if such service will not interfere with the proper performance of judicial duties. A member of the judge s family includes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. As a family 27

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT fiduciary a judge is subject to the following restrictions: a. He shall not serve if it is likely that as a fiduciary he will be engaged in proceedings that would ordinarily come before him, or if the estate, trust, or ward becomes involved in adversarial proceedings; and b. While acting as a fiduciary, a judge is subject to the same restrictions on financial activities that apply to him in his personal capacity. 3.30 A judge shall not practise law whilst the holder of judicial office and refrain from advertising except in accordance with the Legal Profession Act. After ceasing to hold permanent office, a former or retired judge should not appear in court before the expiration of ten (10) years from the date of demitting office but is not otherwise precluded from giving opinions and doing non-contentious work. 28

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO 3.31 Except as is consistent with, or as provided for by, the Constitution or any other law, and with the approval of the Chief Justice, a judge shall not accept appointment to a government commission, committee or to a position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, the administration of justice or related matters. However, a judge may represent his country on ceremonial occasions or in connection with historical, educational, cultural, sporting or like activities. 3.32 A judge may form or join associations of judges or participate in other organizations representing the interests of judges to promote professional education and training and to protect judicial independence. 3.33 A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by these Guidelines, if such payments do not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions: 29

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT a) Such compensation and reimbursement shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activities; and b) Reimbursement shall be limited to the actual cost of travel and accommodation reasonably incurred by the judge and where appropriate to the occasion, by the judge s family. Commentary: 1. In treating with Guideline 3.27, the decision in The Integrity Commission v. The Attorney-General of Trinidad Tobago 2 delivered on 15 th October 2007 is highly instructive. It is useful for the subject of Propriety to be discussed under various headings. There will necessarily be overlap with Impartiality. 2 H.C.A. No. 1735 of 2005 30

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO A. Civic and Charitable Activity A.1 A judge is appointed to serve the public. Many persons appointed to the bench have been and wish to continue to be active in other forms of public service. This is good for the community and for the judge, but carries certain risks. For that reason, it is important to address the question of the limits that judicial appointment places upon the judge s community activities. A.2 The judge administers the law on behalf of the community and therefore unnecessary isolation from the community does not promote wise or just judgments. Judges are not expected to live on the fringe of society of which they are an important part. To do so would be contrary to the effective exercise of judicial power which requires exactly the opposite approach. A.3 There is much discussion around judges participation in civic and charitable activity. Some of this relates to questions involving the balancing of competing considerations. On one hand, there are the beneficial aspects, both for the community and the judiciary, of 31

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT the judge being active in other forms of public service. On the other hand, the judge s involvement may, in some cases, jeopardise the perception of impartiality or lead to an undue number of recusals. If this is the case, the judge should avoid the activity. A.4 These provisions seek to strike a reasonable balance between community involvement and the preservation of judicial impartiality. A.5 Subject to the discussion that follows, judges are at liberty to be members and directors of civic and charitable organizations and, of course, to exercise freedom of religion. In general, however, a judge should not allow the prestige of judicial office to be used in aid of fund raising for particular causes, however worthy. This principle suggests that judges (apart from requests to judicial colleagues) should not personally solicit funds or lend their names to financial campaigns. When a judge is directly involved in fund raising there may be a temptation for lawyers or litigants who are canvassed to try to curry favour with the judge by contributing, such solicitation 32

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO identifies the judge with the objects of the organization. A.6 It is inappropriate for a judge to serve on the Board of Directors of a commercial enterprise. A.7 Except for funds required for the proper administration of justice, it is not appropriate for the judge to be directly involved in soliciting funds from government. A.8 Requests for letters of reference may be difficult for a judge. There are certainly factors a judge will want to consider before agreeing to provide such a letter. One is that the judge should avoid being seen as using the prestige of judicial office to advance a person s private interests. The judge must also avoid giving the impression that certain persons stand in a particular position of influence or favour with the judge. These factors combine to suggest that the judge should agree to give a reference only where it is clear, first, that it is the judge s knowledge of the individual that is called for and not simply the status of the judge and, second, where the judge has an important perspective about 33

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT the individual to contribute, such that it would be unfair to the individual and the selection process were the judge to refuse. B. Political Activity B.1 Two considerations support this rule. Impartiality, actual and perceived, is essential to the exercise of the judicial function. Partisan political activity or out of court statements concerning issues of public controversy by a judge undermine impartiality. They are also likely to lead to public confusion about the nature of the relationship between the judiciary on the one hand and the executive and legislative branches on the other. Partisan actions and statements by definition involve a judge in publicly choosing one side of a debate over another. The perception of partiality will be reinforced if, as is almost inevitable, the judge s activities attract criticism and/or rebuttal. This, in turn, tends to undermine judicial independence. In short, a judge who uses the privileged platform of judicial office to enter the political arena puts at risk public confidence in the impartiality and the independence of the judiciary. 34

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO B.2 Judges should also consider whether mere attendance at certain public gatherings might reasonably give rise to a perception of ongoing political involvement or reasonably put in question the judge s impartiality on an issue that could come before the court. B.3 While restraint is the watchword, there are limited circumstances in which a judge may properly speak out about a matter that is politically controversial, namely, when the matter directly affects the operation of the courts, the independence of the judiciary (which may include judicial salaries and benefits), fundamental aspects of the administration of justice, or the personal integrity of the judge. Even with respect to these matters, however, a judge should act with great restraint. Judges must remember that their public comments may be taken as reflective of the views of the judiciary. It is difficult for a judge to express opinions that will be taken as purely personal and not those of the judiciary generally. There are usually alternatives to public discussion. Except for statutory and constitutional duties and matters affecting the operation of the courts or the proper 35

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT administration of justice, the Chief Justice is in no different position than his colleagues. B.4 A judge is in a unique position to contribute to the improvement of the law, the legal system and the administration of justice. When engaging in such activities, the judge must not be seen as lobbying government or as indicating how he or she would rule if particular situations were to come before the judge in court. This, of course, does not prevent judges from making representations to government concerning judicial independence or, through the appropriate mechanisms, with respect to salaries and benefits. Discussion of the law for educational purposes or pointing out weaknesses in the law in appropriate settings is in no way discouraged. B.5 The duties of the Chief Justice and, in some cases, those of other judges having administrative responsibilities will lead to contact and interaction with government officials, particularly the Attorney- General or other Ministers. This is necessary and appropriate, provided the occasions of such interactions are not partisan in nature and the subjects 36

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO discussed relate to the administration of justice and the courts and not to individual cases. Judges, including the Chief Justice, should take care that they are not perceived as being advisors to those holding political office or to members of the executive. C. Conflicts of Interest C.1 Judges should organise their personal and business affairs to minimise the potential for conflict with their judicial duties. Notwithstanding the judge s best efforts, situations will arise in which the appearance of justice requires the judge to disqualify himself. The issues to be addressed in this section are: (1) what constitutes a conflict of interest? (2) in what circumstances should a judge disclose circumstances which may constitute a conflict of interest? (3) in what circumstances will consent of the parties obviate the need for the judge to be disqualified? and (4) in what circumstances will it be necessary for a judge to preside even though there is an apparent conflict of interest? Each will be addressed in turn. 37

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT C.2 What Constitutes a Conflict of Interest? Divided loyalties and duties may give rise to a conflict of interest. The potential for such arises when the personal interest of the judge (or of those close to him or her) conflicts with the judge s duty to adjudicate impartially. Judicial impartiality is concerned both with impartiality in fact and impartiality in the perception of a reasonable, fair-minded and informed person. In judicial matters, the test for conflict of interest must include both actual conflicts between the judge s self-interest and the duty of impartial adjudication and circumstances in which a reasonable fair-minded and informed person would reasonably apprehend a conflict 3. C.3 In general, a judge should not preside over a case in which he has a financial or property interest that could be affected by its outcome or in which the judge s interest would give rise in a reasonable, fair-minded and informed person, to reasoned suspicion that the judge would not act impartially. This general rule 3 Panday v. Virgil (Senior Superintendent of Police) C.A. MAG. No. 75 of 2006; per Ivor Archie J.A. (as he then was). 38

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO applies whether the interest is itself the subject matter of the controversy or where the outcome of the case could substantially affect the value of any interest or property owned by the judge, the judge s family or close associates. It will not apply where the judge s interest is limited to one shared by citizens generally. C.4 This broadly formulated rule cannot be strictly applied, however. Owning an insurance policy, having a bank account, using a credit card or owning shares in a corporation through a mutual fund would not, in normal circumstances, give rise to conflict or the appearance of conflict unless the outcome of the proceedings before the judge could substantially affect such holdings. Nor should small holdings (de minimis) give rise to any reasonable question concerning the judge s impartiality. However, if the holding is more substantial, the judge should not sit, subject to considerations of necessity. C.5 Should interests of members of the judge s family, close friends or associates be considered as giving rise to a perception of conflict of interest? As a matter of broad general principle, one can imagine 39

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT circumstances in which the interests of the judge s family, close friends or associates in matters before the judge could give rise to a reasonable apprehension of conflicting interest and duty. C.6 The judge who is in financial difficulty will have to be particularly vigilant for conflicts of interest, both actual and perceived. When judges become aware of financial or other similar circumstances likely to affect public perception of their impartiality, they should draw them to the attention of the Chief Justice. C.7 Disclosure A judge should disclose on the record anything which might support a plausible argument in favour of disqualification. C. 8 Consent of the Parties Consent of the parties does not of itself justify a judge continuing in a situation in which he or she felt that disqualification was the proper path. The issue of consent, therefore, arises only in those cases in which the judge believes that there is an arguable point about 40

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO disqualification but in which the judge believes, at the end of the day, a reasonable person would not apprehend a lack of impartiality. A partial answer to this concern may be to adopt the English practice in which the judge is told that an objection was made by one of the parties without being told which side objected. The better approach is for the judge to make the decision without inviting consent, perhaps in consultation with his chief justice or other colleague. If the judge concludes that no reasonable, fair-minded and informed person, considering the matter, would have a reasoned suspicion of a lack of impartiality, the matter should proceed before the judge. If the conclusion is the opposite, the judge should not sit. C.9 Necessity Extraordinary circumstances may require departure from the approaches discussed above. The principle of necessity holds that a judge who would otherwise be disqualified may hear and decide a case where failure to do so could result in an injustice. This might arise where an adjournment or mistrial would work undue 41

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT hardship or where there is no other judge reasonably available who would not be similarly disqualified. C.10 Former Clients/Partners Judges will face the issue of whether they should hear cases involving former clients, members of the judge s former law firm or attorneys-at-law from the government department or legal aid office in which the judge practised before appointment. There are three main factors to be considered. First, the judge should not deal with cases concerning which the judge actually has a conflict of interest, for example, as a result of having had confidential information concerning the matter prior to appointment. Second, circumstances must be avoided in which a reasonable, fair minded and informed person would have a reasoned suspicion that the judge is not impartial. Third, the judge should not withdraw unnecessarily as to do so add to the burden of his colleagues and contributes to delay in the courts. The following are some general guidelines which may be helpful: 42

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO (a) A judge who was in private practice should not sit on any case in which the judge or the judge s former firm was directly involved as either counsel of record or in any other capacity before the judge s appointment. (b) Where the judge practised for government or legal aid, guideline (a) cannot be applied strictly. One sensible approach is not to sit on cases commenced prior to the judge s appointment. (c) With respect to the judge s former law partners, or associates and former clients, the traditional approach is to use a cooling off period, often established by local tradition at ten (10) years. (d) With respect to friends or relatives who are lawyers, the general rule relating to conflicts of interest applies, i.e., that the judge should not sit where a reasonable, fair-minded and informed person would have a reasoned suspicion that the judge 43

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT would not be impartial. Related issues, requiring similar approaches, may arise in relation to overtures to the judge while still on the bench for post-judicial employment. Such overtures may come from law firms or prospective employers. There is a risk that the judge s self-interest and duty would appear to conflict in the eyes of a reasonable, fair-minded and informed person considering the matter. A judge should examine such overtures in this light. It should also be remembered that the conduct of former judges may affect public perception of the judiciary. C.9 Judges must also have regard for Rule 54, Part A of the Code of Ethics appended to the LEGAL PROFESSION ACT 4, which reads: 54. (1) A person who previously held a substantive appointment as a Judge of the Supreme Court shall not appear as an attorney-at-law in any of 4 Chap. 90:03 44

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO the courts of Trinidad and Tobago for a period of ten years commencing on the date of his retirement, resignation or other termination of such appointment. (2) This rule shall not apply to a person who is appointed to act as a Judge in a temporary capacity. 45

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT IV. IMPARTIALITY Statement of Principle IMPARTIALITY IS CRUCIAL TO THE PROPER DISCHARGE OF JUDICIAL OFFICE. JUDGES MUST BE, AND SHOULD APPEAR TO BE, IMPARTIAL WITH RESPECT TO THEIR DECISIONS AND IN THE PROCESS OF THEIR DECISION- MAKING. Guidelines Definition In this Guideline: Fiduciary includes such relationships as executor, administrator, trustee and guardian; 46

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO Financial interest means ownership of a legal or equitable interest or a relationship with another as director, advisor, manager or other active participant in that other s affairs. It includes: a) The proprietary interest of a shareholder in a limited liability company, a policy holder in a mutual insurance company, a depositor in a mutual savings association, or a similar proprietary interest in the issuer only if the outcome of the proceeding could substantially affect the value of the interest; b) Ownership of government securities in the issuer only if the outcome of the proceedings could substantially affect the value of the securities; and c) Mere ownership in a mutual or common investment fund that holds securities only if the judge participates in the management of the fund, provided that a judge by virtue of his holding office in any educational, religious, charitable, fraternal or civic organization shall not be deemed to have a 47

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT financial interest in the securities held by those organizations. Third degree of relationship means great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece. Guidelines 4.1 A judge shall be independent in relation to society in general and in relation to the particular parties to a dispute which the judge has to adjudicate. 4.2 A judge shall perform his judicial duties without favour, bias or prejudice. 4.3 A judge shall ensure that his conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. 4.4 A judge shall, so far as is reasonable, so conduct himself as to minimise the occasions on which it will be necessary for the judge to be disqualified from hearing, ruling or adjudicating in a cause or matter. 48

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO 4.5 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be viewed as likely to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue. 4.6 A judge shall disqualify himself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which a reasonable, fairminded and informed person might believe that the judge is unable to decide the matter impartially. 4.7 If a judge is a member of a fraternal body, it would be appropriate for him to disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 4.8 A judge should strive for transparency so as to combat against suspicion of corruption, nepotism and favouritism, and should also encourage court staff to assist in its promotion, so as to ensure public 49

STATEMENTS OF PRINCIPLE AND GUIDELINES FOR JUDICIAL CONDUCT confidence in and respect for the role, functions and operations of the court. 4.9 A judge shall disqualify himself in any proceedings in which there might be a reasonable perception of a lack of impartiality of the judge including, but not limited to, instances where: a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; b) The judge previously served as an attorneyat-law or was a material witness in the matter in controversy; c) The judge was a partner or an associate having control over the matter in a firm or belonged to chambers which acted for a party in the matter in controversy, during the period when the judge was still a partner or an associate of the said firm or a member of the said chambers; 50

JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO d) The judge s spouse is acting or has acted as an attorney-at-law in the proceedings; e) The judge knows that any member of his family is acting as an attorney-at-law in the proceedings; f) An attorney-at-law, who is a material witness, was an associate or a partner of a firm or belonged to chambers to which the judge was attached; g) The judge, either individually or as a fiduciary, or his spouse or minor child residing in his household has a financial interest in the subject matter in controversy or is a party to the proceeding that could be substantially affected by the outcome of the proceeding; h) The judge or his spouse or any person within the third degree of relationship to either of them or the spouse of that person is: 51