CJ WILL HAVE NO CONTROLBy Onika James Thursday, September 17 2009
In a powerful speech which marked the opening of the 2009/2010 law term at the Convocation Hall, at the Hall of Justice, Port-of-Spain yesterday, Archie detailed several worrying clauses in the present draft constitution, and summed it up with a quotation by an anonymous Quaker.
“I sought to hear the voice of God. I climbed the highest steeple. But God declared, “come down again. I dwell among the people.”
About an hour before the Chief Justice (CJ) delivered this speech, he practised what he preached by stepping out of his first row seat in the Holy Trinity Cathedral, and joined the Lydian Singers in song. He made it clear that “power, pomp, status, and flashing lights of office” held “no allure” for him, and he would speak his mind as he craved “the simple life.”
Archie virtually suggested that if there need to be changes to the constitution “it may be best expressed directly in a vote”, and some thought he meant either by a general election or a referendum. Archie also said, “the rule of law is unsustainable without scrupulous adherence to the principle of the separation of powers”, and he remains “unsure what it is that is not working, that they (Government) are trying to fix.”
The CJ focused on a proposed ministry of justice and said its authority over the judiciary would strip his office of any control.
“If a justice ministry were to provide a focal point for communication with the judiciary that would channel all of those inputs, then there should be no difficulty, that is a matter for the executive. It is against this background, and understanding that I must confess to some concern when I read some of the provisions of the draft constitution that refer to the judiciary.
“They do not meet the objectives that have been otherwise publicly articulated and, in fact would, if passed, take us in the opposite direction. In my respectful view they stem from a fundamental misunderstanding of our role and function, and have disturbing implications for the judicial independence.”
He said according to the draft, a permanent secretary for the judiciary will be appointed by an executive president, will be responsible for the administration of the judiciary and will report to a minister of justice and not to the chief justice.
The CJ referred to clauses 121 to 125, 136, 142, and added that, “the danger lies in the potential to gradually and systematically strip the judiciary of its independence and the citizens of their protection through ordinary or subordinate legislation requiring no special majority.”
To illustrate his point, Archie posed a rhetorical question. “If you were one of the parties to a lawsuit, would you feel comfortable in knowing that the party on the opposite side could have access to the judge’s chambers, could control the filing of documents and the keeping of all records in the matter, the selection of the judge who would handle the matter, the scheduling of courtrooms and other resources, the composition of the judge’s support team including his or her research assistant, all the information, technology and security associated with the matter and the court, the judge’s leave and travel approval, training, reading material, and personal records?......well all of those things are what court administration is about and that is the challenge to which the current draft would expose us.”
Archie referred to 125 as the “most worrisome” clause of all. According to the clause, “Subject to this constitution, Parliament may confer on any court any part of the jurisdiction of, and any powers conferred on the High Court by this constitution or any other law.”
Archie noted this provision “requires no special majority, nor does it require that the new court or courts enjoy the constitutional protections designed to ensure the independence of the Supreme Court.
“Arguably, the most important power of the Supreme Court, inherent in the separation of powers and recognised both at common law and by statute, is the power of judicial review of executive action. It is the only protection citizens have against arbitrary or unlawful state action.” He even indirectly noted the proposed changes to service commissions, in which they too would be stripped of their authority.
“In some instances, it (the judiciary) is the backstop to the service commissions and will assume even more significance if the independence of the service commissions is weakened. If the draft constitution is adopted in its current form, that power can be simply and unceremoniously stripped away. In fact, the Chief Justice will cease to be a member of the Judicial and Legal Services Commission altogether.”
The CJ made it clear that his concern with the draft document was not “a personal criticism of anyone, including whoever authored the current draft,” but that his “singular interest lies in the opportunity to make a difference and to contribute to the national good.”
Archie said the American founding fathers “held the common conviction that the separation of powers was an essential barrier to tyranny, to holding government in check and the prevention of arbitrary policy-making.”
See Page 13A
