Bereaux of(f) the Bench Part II

Court of Appeal Judge Nolan Bereaux sometimes got it wrong. In the Piarco I matter, his holding that a charge of apparent bias against Chief Magistrate Sherman McNicolls was not sustainable, later supported by the Court of Appeal, was held to be wrong by the Judicial Committee of the Privy Council (JCPC), since it was clear, even then, that McNicolls was “hopelessly compromised.”

In Minister of Planning v Fishermen and Friends of the Sea, Bereaux got wrong the meaning and implementation of the ‘polluters pay’ principle, subsequently corrected by the JCPC (Lord Carnwath).

Ironically, it was Lord Carnwath who agreed entirely with Bereaux’s reasoning in the Marcia Ayres-Caesar matter concerning the role and powers of the President in investigating the circumstances of the resignation of a judge. Bereaux had found himself in the minority at the Court of Appeal. His view, and Carnwath’s, which I believe to be correct, did not prevail at the JCPC.

In AG v Maharaj, on the composition of the Judicial and Legal Services Commission, the JCPC held that Bereaux (with Mendonca and Rajkumar JJA) were wrong to hold that section 110(3)(b) allows a retired judge to be appointed. In my view, the Court of Appeal was correct, and Lady Black’s reasoning is flawed.

A judge may have to deal with difficult or uncomfortable situations and needs to be forthright and courageous. I think this is especially true in small, hierarchical, ethnically divided societies like ours, where relationships may trump rules.

These situations may involve the Executive or even the judge’s colleagues on the bench. How much deference should be afforded to the Executive is often debatable, but I believe that Bereaux was inclined to be more than less deferential to the Executive and Parliament. This would be consistent with his view that judges should stick to interpreting the law, not making it.

He would not agree with Jamadar that, where the Constitution is supreme, the Judiciary is primus inter pares among the three branches of the state. However, as demonstrated in Francis and Hinds, he is prepared to draw a line under executive or parliamentary power where it trenches impermissibly on the role of the Judiciary.

Bereaux was tough on first instance judges, where he found that the judge did not think the matter through, used sloppy reasoning, or did not master the facts.

Recently, he was severe on the Law Association’s Disciplinary Committee. He was even tougher on former chief justice Ivor Archie. In the Ayres-Caesar and Law Association v Chief Justice matters, Bereaux’s assessment of Archie’s conduct pulled no punches. For Bereaux, what was at stake was not individual reputations or feelings or personal relationships, but the very integrity of the system of the administration of justice.

In his Law Association judgment he stated: “Section 137 is intended to protect the Chief Justice and judges from unwarranted attempts to remove them from office by the Executive. It is recognised that in the course of his duties, a judge’s decision may offend the Executive. …But section 137 was not meant to immunise him from public scrutiny. It is for this reason that judicial officers are expected to conduct themselves, publicly and privately, in a manner befitting of their office.”

In a recent presentation to the CCJ Academy of Law conference, Peter Jamadar made “a call for a more courageous use of legal imagination, in the critique of existing and the development of new and more apt Caribbean legal methodologies…a call for the interpretation and application of laws through constitutional and social context lenses.”

Bereaux, I suspect, would not support this approach. His approach to adjudication took the law as he found or discerned it, and he applied it to the facts, rigorously and thoroughly determined. Bereaux, as judge, did not interpret the law as he wished it to be.

Quotations from English or West Indian literature did not adorn his judgments. He recognised that while second-order conceptions such as the ‘rule of law’ and ‘democracy’ are meaningful in constitutional interpretation, in other adjudicative contexts, they must be handled carefully or not at all.

But it would be a mistake to think that Bereaux was some antediluvian relic left over from the days of bewigged colonial judges, an example of what Jamadar has termed “entrenched coloniality”.

Rather, Bereaux epitomised judicial restraint, suppressing whatever his personal views and desires might be in order to apply the law as he found it. It is worth noting that although he and Jamadar approached cases differently, they often ended up in the same place, as in Francis and Hinds, Dumas, Law Association, and Ayres-Caesar. I think that is because while Bereaux and Jamadar very likely share the same fundamental values and embrace similar aspirations for Caribbean society, they differ radically on what they think judges should do to realise these.

The evolution of our Caribbean jurisprudence is a dialectical process, emerging from the clash of inherited English law, norms and methods with local West Indian norms and culture, as well as the clash of legal positivist with liberal or “activist” approaches to adjudication, reflected notably in Bereaux and Jamadar. Both elements are necessary for the development and growth of a Caribbean jurisprudence which is ‘creole’ rather than “indigenous”. If this is acknowledged and appreciated, it becomes clear that Bereaux’s tenure on the bench was highly consequential in the development of our jurisprudence.

Nolan Bereaux served as a judge for over 25 years, diligently delivering hundreds of judgments. Unlike the several ersatz “landmark” judgments cited by the media or some attorneys, some of Bereaux’s might quite properly be called landmark judgments. His contribution to the dialectical development of our Caribbean jurisprudence is undeniable. For younger judges not gifted with Jamadar’s philosophical and literary erudition, Bereaux’s restrained, positivist approach to adjudication is an apt model for them to follow.