Complaints about judges wait as committee protocol amended
Members of the public with complaints about Supreme Court judges have had their grievances put on hold after a judicial committee was found to have “no power” to deal with them.
The Judicial and Legal Services Committee was formed in November 2013 to advise the Governor on judicial appointments and complaints about judges, but a Court of Appeal ruling in January this year found it could not properly deal with the latter.
The Royal Gazette has seen letters since sent to two complainants from the JLSC’s secretary advising them of a problem with the Judicial Complaints Protocol, which sets out how complaints are handled.
Justice campaigner Eron Hill was told in July that “some of the provisions” of the protocol were found by the appeal court to be “unlawful, or, at any rate, beyond the powers of the committee”.
The secretary wrote that there would be a delay in dealing with Mr Hill’s complaint about Puisne Judge Juan Wolffe and added: “The protocol is in the course of being amended [a draft amendment will shortly be sent to the Governor] and consideration of your complaint will resume after that amendment has taken place.”
Gayle Ann Ventures, who filed a grievance accusing Chief Justice Larry Mussenden of an appearance of bias, was told in March that the appeal court had “held that, in respect of Supreme Court justices, the JLSC has no power to make disciplinary decisions under the protocol either (a) summarily to dismiss complaints as unmeritorious or (b) to determine the validity of those complaints”.
The secretary added: “In those circumstances it does not seem to the JLSC that it can presently proceed with a complaint such as yours.
“The JLSC will have to give careful thought as to the extent that it can fulfil any role in relation to disciplinary complaints in relation to Supreme Court justices.
“It would appear from the judgment of the Court of Appeal that that role could be advisory, at the highest; and that the existing protocol will need substantial amendment or a complete rewriting. This is not a simple process and may take some time.”
In the civil court, Mr Justice Mussenden considered a request from Ms Ventures in April for him to recuse himself over an appearance of bias from a case she launched. He rejected it in August.
The Court of Appeal ruling from January that related to the JLSC was in the civil matter of LeYoni Junos and the Governor.
Ms Junos said this week: “The JLSC protocol … is unfit for publication in the circumstances and the JLSC should have announced this and withdrawn it from all online sites.
“Instead they continue to promote it, misleading the public.”
Mr Hill, of the Bermuda Equal Justice Initiative, said he understood the secretary’s letter to him to mean that the JLSC wanted or intended to dismiss his complaint but knew if it did, it would be unlawful in light of the appeal ruling.
“It would appear that no action has been taken since the Junos ruling to actually rectify the issues raised by the court,” he said.
A Government House spokeswoman said this week that the protocol was being amended as a result of the Junos ruling "to ensure that it is consistent with the Constitution and reflects the broader findings in that judgment“.
She added: “There are no plans to revisit decisions made following the process set out in the original protocol.
“There are currently six complaints against substantive or acting judges or magistrates, which will be considered when the amended protocol has been approved.”
The JLSC was set up by former governor George Fergusson and is chaired by Sir Christopher Clarke, President of Bermuda’s Court of Appeal.
The Government House spokeswoman said Sir Christopher, the Governor and Mr Justice Mussenden were “equally committed to addressing the issues with a view to publishing an amended protocol” next month that “reflects the findings in the Junos judgment and comments from the judiciary”.
She said: “While it will be an effective mechanism to address complaints about the judiciary, it will also serve to strengthen the judiciary and to demonstrate its accountability to the public whom they serve.”
Sir Christopher referred to an “ongoing dispute as to whether it is lawful for the JLSC to operate [the judicial complaints] protocol” in the Bermuda Judiciary Annual Report 2023.
He added that the JLSC wished to become a statutory body and he planned to discuss how best to do that with the Governor and others.
The protocol was drawn up by Sir Edward Zacca, a former president of the Court of Appeal, and Ian Kawaley, a former chief justice, and came into effect on January 1, 2014.
It includes a complaint form that must be sent to the Governor within three months of the conduct complained of having occurred.
The protocol appeared to give the committee power to dismiss complaints “without any full investigation” where it found them to be “unmeritorious”, as well as to investigate and adjudicate on complaints deemed to be “valid”.
The Royal Gazettereported last week that the Governor, Rena Lalgie, had stonewalled questions about the status of Puisne Judge Nicole Stoneham, the head of the judiciary’s matrimonial jurisdiction.
Mrs Justice Stoneham was ordered by the Court of Appeal to recuse herself from a Family Court case in 2023 after an accusation of bias and was said by sources to have been suspended since July this year.
Ms Lalgie has made no public comment on whether the judge is the subject of a judicial disciplinary process.
The other members of the JLSC are Mr Justice Mussenden; Bermuda Bar Association president Jerome Wilson; David Jenkins, a former chief justice of Prince Edward Island Court of Appeal in Canada; Caribbean Court of Justice judge Adrian Saunders; former Ombudsman Arlene Brock; and former independent senator James Jardine.
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