June 28, 2009

Justice David Hayton

Speed up wheels of justice
Only non-Caribbean judge on CCJ bench:

Not many people would say that working in the judiciary in Trinidad and Tobago is a holiday. Except, perhaps, if you're a judge with the Caribbean Court of Justice.

Just last November, Justice David Hayton, the only non-Caribbean judge on the bench of the regional judicial tribunal, boasted in the Law Report, a journal of King's College in London, that 'I have found the ideal job, broadening my legal and territorial horizons, while, for once, leaving me under-worked with time to play tennis, squash and golf and sit under palm-trees, and reflect upon.

"The court took off very slowly," Justice Hayton explained in an interview on Friday at the Hyatt Regency hotel in Port of Spain.

"For the first two or three years we had no cases," said the esteemed professor of law who specialises in trust and equity, and private international law. Within the last year or so, cases have begun to trickle in to the CCJ-Trinidad Cement Ltd has brought a case against the Guyanese government for not imposing the agreed 15 per cent tariff on cement it imported from Venezuela.

Twelve Caricom states signed the agreement to establish the court in 2005. Since then, only Barbados and Guyana have removed the Privy Council as their final court of appeal, and replaced it with the CCJ.

Having given up his various positions as a part-time judge in London, a professor of law at King's College and his bar consultancy, Hayton talked about security of tenure last week. He has discovered that he, and the other six judges on the CCJ-according to the Privy Council on the implication of the CCJ replacing the Privy Council-are put above local High Court judges and local Court of Appeal judges but without the same or better protection.

If it is alleged that a High Court judge is guilty of misbehaviour or misconduct, a special ad hoc tribunal is formed to decide if a judge is guilty, following which a recommendation is made to the Privy Council for him to be removed. With the CCJ replacing the Privy Council, the CCJ's judges would not be subject to the Privy Council jurisdiction.

"And so what was our security of tenure?" Hayton asked. "We were appointed, transparently, by the Regional Judicial and Legal Services Commission and we can only be sacked by them.

"We are the most financially independent court in the world with a $100 million trust fund that was set up to secure the future of the court. We have legal independence. I think it was Lord Bingham who said, 'Ah, but these 12 prime ministers could always get together and decide to abolish your security of tenure by amending the Treaty.'

"In theory that's possible but it's fanciful, and it showed a rather belittling view of the Privy Council," he said.

Justice Hayton, who was hired as an acting Supreme Court judge in the Bahamas in 2000 and 2001 for 12 weeks each year to clear up the backlog of cases, believes T&T, and indeed all of Caricom, should make the CCJ the final court of appeal.

"I heard one or two people say that we're all worried in the Caribbean about judges being a little too close to people, being politically tainted in one way or another.

"Of course, the Privy Council is thousands of miles away so they won't be tainted by anything. Obviously I've come from England and I don't have any close connections with any politicians and the other members of the court are highly respected people of independent integrity and impartiality and so on, every bit as much as the Privy Council.

"So I don't see that as a sensible argument. As Sonny Ramphal made clear in the opening address to this conference, it makes absolute sense for independent Caribbean countries to assert their independence by saying we've got very able jurists in the Caribbean area, a lot are in international courts throughout the world now and we've got very good ones on the CCJ."

Hayton speculates, however, that in T&T, the CCJ would probably never replace the Privy Council given the current political landscape.

"I don't see T&T taking the CCJ until (Opposition Leader Basdeo) Panday ceases to be leader of the UNC. You have to have a special majority [to make the change] and that means you've got to have both the ruling party and the Opposition agree, he said.

His argument was was the personalities of both leaders dictated against this happening, even though he noted that it was Panday, who as Prime Minister, signed up to the international agreement to have the CCJ.

Hayton also believes that after four years in Trinidad, one has a better perspective of Caribbean attitudes "which is something the Privy Council don't have".

Although criminal law is not his area of expertise, Justice Hayton pointed to deficiencies in the local judicial system as it relates to crime.

"First of all you, need a more effective police force to catch more criminals-the detection rate seems pretty low," he said.

"Then, of course you need an efficient criminal law justice to process them through the system reasonably quickly," he added, contending that one of the main problems with the local system was the retention of the old-fashioned preliminary enquiry process before magistrates where it's possible to take constitutional points and go for judicial review when these proceedings were going on.

"It's appalling. It took eight years before the Piarco Enquiry case got through the magistrates system," he noted.

"You also need to put more money in the system so you have more judges, so that cases can be heard much more swiftly.

"I gather at the moment it can easily take two years before a murder case is heard after the indictment, after the magistrate's hearing is over.

"And in some cases it can take up to four or five years and meanwhile, of course, it gives plenty of time for witnesses to have second thoughts, or to be intimidated or threatened or just leave the jurisdiction so we've really got to speed up the whole criminal justice system to make it more efficient," he said.

Legislation should also be brought to Parliament to allow security agencies to intercept telephone conversations and communications and use this as evidence in court, Hayton suggested.

On the matter of constitutional reform, Hayton said that already the Prime Minister of T&T has too much power. His power of veto over the appointment of the DPP, the Commissioner of Police, the Solicitor-General and the Chief Parliamentary Draftsman basically allows him to turn down all proposed candidates "until he gets the person he considers the right sort of person for the job", Justice Hayton said. He said it would be preferable to have an independent body, like the Regional Judicial and Legal Services Commission appoint these people, without any power of veto from the Prime Minister.

"It seems to me, already, under the Constitution, the Prime Minister has perhaps too much influence, so I don't see the need quite so much for an executive presidency.

"But I haven't been following the constitutional debate that closely. It seems a lot of it is a red herring to distract one's attention because for all these major constitutional changes, aren't you going to need the consent of the Opposition?" he asked.

He also noted that as far as the PNM was concerned, Prime Minister Patrick Manning has absolute powers over who actually stands for a constituency in an election.

"So people who had very distinguished records, like Ken Valley, despite the support of their constituency, were vetoed as a member.

"And that means the leader of the PNM has much more power than the parties in England. You don't have such power vested in the leader," he noted.

See: Profile: http://www.caribbeancourtofjustice.org/judges_pages/hayton.html

1 comment:

Anonymous said...

I agree, mostly, with what Justice Hayton is suggesting:in that cases should not take longer than needed, enabling witnesses to be intimidated or worse executed. The whole process should be speeded up to protect witnesses and indict criminals and bring justice to the innocent. We should however not do away with the death penalty.