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Court dismisses case over judicial complaint body

LeYoni Junos (File photograph)

The Court of Appeal has struck out a legal action initiated against the Governor for referring a complaint to the Judicial and Legal Services Committee.

LeYoni Junos, of the Civil Justice Advocacy Group, argued that the JLSC was an “unconstitutional body” that lacked authority to investigate or hear complaints against local judges and called for a judicial review.

While the case was rejected by Puisne Judge Juan Wolffe last year, Ms Junos sought to appeal the decision to the Court of Appeal.

In a decision released late last month, the Court of Appeal upheld the ruling by Mr Justice Wolffe.

“While it is common ground that the JLSC has no constitutional or other statutory existence, there is no basis for doubting the validity of its existence as a standing body of advisers convened to advise the Governor on disciplinary matters involving the judiciary,” the judgment said.

“It follows that while the Governor’s decision, in redirecting the applicant first to lodge her complaint with the JLSC, may be regarded as unhelpful, it was not unlawful.

“We say ‘unhelpful’ because the complaint could and, in light of the applicant’s concerns, should have been accepted by the Governor’s Office even while making clear that the complaint would be referred to the JLSC for advice.”

While the panel ruled against Ms Junos, they also found that there should not be any orders for legal costs in the case.

“We recognise that the applicant had reasonable concerns about the role of the JLSC and how that might have affected the treatment of her complaint,” the judgment said.

“In the clear articulation of her arguments, she has helped to bring to light the shortcomings of the protocol and the erroneous assumptions upon which the JLSC is thought to be able to operate.

“Accordingly, we consider that there has been a significant public interest served by her application and while we see no need to make the Protected Costs Order she seeks, we conclude that there should be no order for costs, either in respect of the proceedings before this court or in the court below.”

The case came as a result of a complaint made by the Civil Justice Advocacy Group, a pressure group challenging the legitimacy of the JLSC, 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 had filed the civil proceedings against the Governor on May 17, 2019, but that it “was met with absolute silence from the judiciary”.

The CJAG 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.

Puisne Judge Juan Wolffe refused the application in a written decision last year, finding that while the JLSC was not enshrined in the Bermuda Constitution, the Governor was entitled to create processes and procedures for how judicial complaints were handled.

Ms Junos then took the matter to the Court of Appeal, who last year heard the application for leave to appeal and the appeal itself on a provisional basis.

The court found that, in law, the only body authorised to investigate and advise the Governor about whether a judge’s conduct warranted them being removed from office was a “section 74” tribunal.

However, the court also found that the Governor was entitled to seek advice from the JLSC or any other suitable person to determine if a tribunal should be convened.

“It will be a matter for the Governor to consider whether such advice is required and so there can be no question now of ordering, by way of mandamus, or otherwise, the convening of a section 74 tribunal,” the judgment said.

“The mere fact that the Governor was prepared to refer the complaint to the JLSC did not ground a legitimate expectation in favour of the applicant that he would convene a tribunal.”

The court added that while the protocol was not strictly unlawful, it did require redrafting to remove or amend provisions related to the summary dismissal of complaints and to confirm the purely advisory role of the JLSC.

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