Appeals are normally heard by three judges in Court of Appeal. Three independent minds are supposed to review the reasoning and decision of the trial judge whose judgment is under challenge. I have often had cause to wonder if the three appeal court judges who hear the case actually apply their minds independently to the issues raised. This is in part because the Chairman of the panel (who sits in the middle) is the only one asking the questions while the other two, for the most part, remain silent as if they are there simply to make up numbers.
There may be many good reasons for this. Judicial protocol and respect for the most senior judge in the chair, discussions they may have had among themselves before coming into court about the appeal or the fact that there is no need to ask any questions in light of the questions already asked by the Chairman. There may be others such as the fact that the other judges did not read the papers and hence have no idea what is going on or that they have no knowledge or experience in the particular field of learning. In short, they are indeed just there to make up numbers so that the required quorum of three judges sits.
One judge who broke with the tradition of passive silence was Justice Ivor Archie. He was certain to pose his own questions and I always left with the feeling that he independently applied his mind to the case. This much is evident from the many individual judgments he has delivered to register his disagreement with the way his colleagues approached a case.
In Panday’s appeal, he wrote a separate judgment despite the fact that the senior judge in the chair, Warner JA wrote a judgment with which Weekes JA agreed. Archie was not afraid to record his own thoughts. In his judgment he explained that he did so because “there were some differences in emphasis in our respective analyses of the facts and law that make it clear that we have arrived at the same conclusions by a slightly different route.” In the case of Chandresh Sharma v The Integrity Commission he also wrote a separate judgment to separately record his views on the Freedom of Information Act.
Even when he was the most junior judge on the panel this did not faze him; he asked what was on his mind to ensure that he was personally satisfied. I have always looked forward to arguing appeals when Justice Archie was on the panel because I knew win, lose or draw, I was sure to enjoy the cut and thrust of the debate.
Passionate about the development of the law and quick to break into a frown or smile, Justice Archie is for certain, one of the favourite judges in the court. Whilst some judges remain expressionless and bland, his face is full of expression and his body language is emotional. This adds some colour to the otherwise dry (if not boring) legal proceedings. His enthusiasm and brilliance was no doubt quickly recognized by the judiciary as he soon started writing judgments for the court despite his relatively junior status. This is something of a rarity as junior judges are seldom given the task to write the judgment for the court.
In what I consider to be one of the best judgments written by a local judge, Justice Archie (the most junior on the panel), wrote the judgment in the Equal Opportunities Commission appeal case. Former Chief Justice Sat Sharma and Justice Kangaloo agreed with his judgment. Full of confidence, he was never overwhelmed by the occasion and immediately established himself as an intellectual force to be reckoned with. Unlike many judges, he has experience in both the criminal and civil arena and this is an invaluable asset as he will have to sit in judgment of cases from both spheres.
I am certain that the new Chief Justice would be on the receiving end of a lot of well-intentioned advice. My hope is that he will not age overnight and become yet another arrogant, bland, expressionless, perfunctory judge (we have enough of these already) whose lack of personality makes the journey for justice robotic and unexciting. Youthful exuberance is not a liability but an asset and our young CJ is sure to bring much-needed stability, scholarship, passion and change in the administration of justice. The next 16 years will be known as the Archie era. The justice system is in very good hands.
By Anand Ramlogan 2008-01-26