A judge has upheld a decision to refer a complaint against Chief Justice Narinder Hargun to the Judicial and Legal Services Committee.

LeYoni Junos of the Civil Justice Advocacy Group argued the JLSC was an “unconstitutional body” which lacked authority to investigate or hear the complaint and called for a judicial review.

Puisne Judge Juan Wolffe however refused the application in a written decision dated March 10.

The judge wrote that while the JLSC was not enshrined in the Bermuda Constitution, the Governor was entitled to create processes and procedures for how judicial complaints are handled.

“The Bermuda Constitution instils in the Governor not only the power to remove a judicial officer, but also ‘exercise disciplinary control’ over judicial officers,” Mr Justice Wolffe said.

He added that under established protocols while the JLSC reports its findings and makes recommendations, the “buck stops” with the Governor.

“The functions of the JLSC does not in any way whatsoever usurp or erode the final decision making power of the Governor,” Mr Justice Wolffe added.

“The JLSC is nothing more than an advisory body to the Governor on matters relating to the disciplining of judicial officers.

“The Governor still retains the exclusive power to make the final say as to what is to happen to the judicial complaint and what penalty, if any, would be imposed on a judge if the Governor deems that their behaviour amounts to judicial misconduct.”

The case came as a result of a complaint made by the Civil Justice Advocacy Group, a pressure group challenging the legitimacy of a committee set up to handle complaints about judges, to John Rankin, the then Governor, in February 2019, regarding the behaviour of the Chief Justice.

Later that month, Government House told the group the complaint had to be resubmitted to the JLSC in accordance with its “complaints protocol”.

The group, in an open letter sent to Rena Lalgie, Mr Rankin’s successor, said it filed the civil proceedings against the Governor on May 17, 2019 but that it “was met with absolute silence from the judiciary – that is, there was, and has been to date, no communication from the Registrar as to the granting or refusal of leave for this application”.

The JLSC subsequently filed for a judicial review of the Governor’s decision in the Supreme Court, arguing that the JLSC was an unconstitutional body with no legal authority.

Ms Junos told the court that the Governor had a responsibility to appoint a tribunal to hear the complaint.

She highlighted that both Gibraltar and Cayman include the creation of judicial services commissions in their respective constitutions.

However in his decision Mr Justice Wolffe noted that other jurisdictions, including Australia and the Isle of Man, use non-statutory framework to handle complaints against the judiciary.

“Therefore, one cannot definitively state that the JLSC, and its procedures, must have constitutional or statutory origins for them to have legal and procedural import,” he said.

While the judge said Bermuda may wish to follow in the footsteps of Gibraltar and the Cayman Islands by creating a constitutional body, the lack of constitutional support was not “fatal” for the JLSC.

Mr Justice Wolffe also said the protocols created for the JLSC offer a “far wider layer of redress” for members of the public who launch complaints.

He said that while the Constitution is confined to matters regarding the removal of judges, it makes no mention of disciplinary processes to be followed for complaints that do not call for the judge’s removal.

Mr Justice Wolffe added that it could be sustainably argued that the JLSC has stronger checks and balances than those required under the Constitution.

“Even though the JLSC may not have constitutional or legislative underpinnings, its composition, mandate and procedures in dealing with complaints not only bear the hallmarks of the Bermuda Constitution, but goes farther and has more clarity and certainty for those who are complaining and those who are complained of,” he said.

In all the circumstances, Mr Justice Wolffe found that the applicant had not put forward an arguable ground for judicial review that had a realistic prospect of success and refused the application.

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