To­day, I want to deal with the rule of law, in re­la­tion to the draft con­sti­tu­tion which, if im­ple­ment­ed, would de­ny in­di­vid­u­als in Trinidad and To­ba­go the en­joy­ment of the rule of law, and would ren­der their right to ap­ply to the High Court for re­dress against the Gov­ern­ment for the vi­o­la­tions of their fun­da­men­tal rights use­less. I have al­ready demon­strat­ed that the draft con­sti­tu­tion of­fends the ba­sic prin­ci­ples of the sep­a­ra­tion of pow­ers and the in­de­pen­dence of the ju­di­cia­ry. The six ba­sic el­e­ments of our ex­ist­ing con­sti­tu­tion would not be en­joyed if the draft con­sti­tu­tion be­comes law. Con­sti­tu­tion­al­ism recog­nis­es that democ­ra­cy and the rule of law can­not be en­joyed in a so­ci­ety in which a head of gov­ern­ment or head of state con­trols the three arms of the State.

The three arms of the State are the ex­ec­u­tive, the leg­is­la­ture and the ju­di­cia­ry. I have al­ready shown, in pre­vi­ous ar­ti­cles, that the ex­ec­u­tive pres­i­dent, un­der the draft con­sti­tu­tion, would have con­trol of the ex­ec­u­tive, the leg­is­la­ture and the ju­di­cia­ry. Un­der our ex­ist­ing sys­tem of gov­ern­ment, the con­sti­tu­tion pro­hibits the ex­ec­u­tive from con­trol­ling the ju­di­cia­ry. Un­der the ex­ist­ing con­sti­tu­tion, the prime min­is­ter is pro­hib­it­ed from ex­er­cis­ing the func­tions of head of state and is pro­hib­it­ed from ex­er­cis­ing ad­min­is­tra­tive pow­ers of the ju­di­cia­ry. Un­der the ex­ist­ing con­sti­tu­tion, the Gov­ern­ment can­not use its sim­ple ma­jor­i­ty in Par­lia­ment or its three-fifths ma­jor­i­ty to pass any law to take away the ju­ris­dic­tion of the Supreme Court.

The pro­vi­sions of the draft con­sti­tu­tion would, how­ev­er, give the Gov­ern­ment those pow­ers. The six ba­sic el­e­ments which I spoke about and which form the pil­lars of the ex­ist­ing con­sti­tu­tion are:

1. The su­prema­cy of the con­sti­tu­tion.

2. A de­mo­c­ra­t­ic form of gov­ern­ment.

3. A de­mar­ca­tion of pow­ers be­tween the ex­ec­u­tive, the leg­is­la­ture and the ju­di­cia­ry. This is known as the doc­trine of the sep­a­ra­tion of pow­ers.

4. An in­de­pen­dent ju­di­cia­ry, to be able to en­force the fun­da­men­tal rights against the State in favour of ag­griev­ed in­di­vid­u­als.

5. En­trenched hu­man and fun­da­men­tal rights to be en­joyed by in­di­vid­u­als.

6. Any in­di­vid­ual whose hu­man and fun­da­men­tal rights have been con­tra­vened, or are be­ing con­tra­vened, or are like­ly to be con­tra­vened by any arm of the State has a right to ap­ply to the ju­di­cia­ry to get re­dress against the State.

In ex­er­cis­ing its ju­ris­dic­tion un­der Sec­tion 14 of the con­sti­tu­tion, the ju­di­cia­ry is giv­en a wide ju­ris­dic­tion to de­clare any ac­tion of the ex­ec­u­tive, Par­lia­ment, or even the ju­di­cia­ry, to be un­con­sti­tu­tion­al and to award mon­e­tary com­pen­sa­tion for any such vi­o­la­tions. The pow­er of the court to grant re­dress in­cludes the pow­er to de­clare an Act of Par­lia­ment un­con­sti­tu­tion­al and to de­clare any ac­tion of the ju­di­cia­ry un­con­sti­tu­tion­al. Sec­tion 13 of the con­sti­tu­tion gives to the ju­di­cia­ry the pow­er to even de­clare un­con­sti­tu­tion­al a law passed by the Par­lia­ment with a spe­cial three-fifths ma­jor­i­ty.

The court can de­clare such a law to be un­con­sti­tu­tion­al if it finds that it is not rea­son­ably jus­ti­fi­able in our so­ci­ety, hav­ing re­gard to the need to have prop­er re­spect for the hu­man rights and free­doms en­trenched in the Con­sti­tu­tion. It would be read­i­ly seen that in or­der for the ju­di­cia­ry to per­form its func­tions as the guardian of the con­sti­tu­tion and the rights of the peo­ple, the judges must be pro­tect­ed from ex­ec­u­tive pres­sure or in­ter­fer­ence. This is recog­nised as an es­sen­tial fea­ture of the rule of law. Con­sti­tu­tion­al­ism can­not thrive with­out ob­ser­vance of the rule of law, and democ­ra­cy can­not ex­ist with­out the rule of law.

The Uni­ver­sal De­c­la­ra­tion of Hu­man Rights states: "It is es­sen­tial if man is not to be com­pelled to have re­course, as a last re­sort, to re­bel­lion against tyran­ny and op­pres­sion, that hu­man rights should be pro­tect­ed by the rule of law." The rule of law and the doc­trine of the sep­a­ra­tion of pow­ers re­quire the ju­di­cia­ry to be free from the in­ter­fer­ence and in­flu­ence of the Gov­ern­ment, in or­der for it to dis­charge its du­ties to make the Gov­ern­ment ac­count to the law. If the judges are made be­hold­en un­to the Gov­ern­ment, they are not like­ly to give de­ci­sions against the Gov­ern­ment, be­cause of the pres­sures and in­ter­fer­ence by the Gov­ern­ment on the in­de­pen­dence of judges.

In my pre­vi­ous ar­ti­cles, I showed that the pro­pos­als in the draft con­sti­tu­tion would per­mit a min­is­ter of gov­ern­ment to ex­er­cise ad­min­is­tra­tive func­tions of the ju­di­cia­ry. The Gov­ern­ment would be able to use its ma­jor­i­ty in Par­lia­ment to cre­ate new courts to take away the ju­ris­dic­tion of the judges of the Supreme Court. The ju­di­cia­ry would have to func­tion in an en­vi­ron­ment in which the Gov­ern­ment would have con­trol over the ad­min­is­tra­tive pow­ers of the ju­di­cia­ry. This en­vi­ron­ment is like­ly to ad­verse­ly af­fect the in­de­pen­dence and im­par­tial­i­ty of the judges, and can make the ju­di­cia­ry com­pli­ant to the wish­es of the Gov­ern­ment. An im­por­tant func­tion of the court is for the court to make the Gov­ern­ment ac­count to the courts in re­spect of the ob­ser­vance of the law.

If the courts are con­trolled by the Gov­ern­ment, the courts would not be able to per­form that role with courage and fear­less­ness. It is ap­pro­pri­ate to re­fer to the words of Lord Bing­ham in the Privy Coun­cil in the case of In­de­pen­dent Ja­maica Coun­cil for Hu­man Rights (1998) Ltd v Mar­shall–Bur­nett (2005) 2AC 356 at para­graph 12: "In­de­pen­dence of the judges (or, put neg­a­tive­ly, the pro­tec­tion of judges from ex­ec­u­tive pres­sure or in­ter­fer­ence) is all but uni­ver­sal­ly recog­nised as a nec­es­sary fea­ture of the rule of law." In that case, there was a chal­lenge to the con­sti­tu­tion­al­i­ty of the in­stru­ments which pro­vid­ed for the ap­point­ment of the Chief Jus­tice and judges of the Caribbean Court of Jus­tice.

The main ground of the chal­lenge was that the in­stru­ments es­tab­lish­ing the court did not pro­tect the judges from ex­ec­u­tive pres­sure or in­ter­fer­ence, and con­sti­tut­ed a threat to the in­de­pen­dence of the ju­di­cia­ry, and vi­o­lat­ed the doc­trine of the rule of law. The pro­vi­sions of the draft con­sti­tu­tion would al­so put ex­ec­u­tive pres­sure on the judges of the Supreme Court, and would in­ter­fere with their in­de­pen­dence. The Ex­ec­u­tive Pres­i­dent of Guyana had sim­i­lar pow­ers of the Ex­ec­u­tive Pres­i­dent un­der the draft con­sti­tu­tion, and with­in a short space of time the ju­di­cia­ry in Guyana was re­gard­ed as a gov­ern­ment tool to car­ry out the wish­es of the Ex­ec­u­tive Pres­i­dent. Pres­i­dent Burn­ham of Guyana abol­ished ap­peals to the Privy Coun­cil, and he used his ex­ec­u­tive pow­ers to in­ter­fere with the in­de­pen­dence of the ju­di­cia­ry.

He ap­point­ed judges based on their sup­port for his po­lit­i­cal par­ty. Most of the judges be­came the tool of Pres­i­dent Burn­ham. The com­ments made by the Chief Jus­tice, the Hon Ivor Archie, dur­ing the last open­ing of the law term, on the threat by the draft con­sti­tu­tion to the in­de­pen­dence of the ju­di­cia­ry should, there­fore, not be tak­en light­ly. The pro­pos­als in the draft con­sti­tu­tion would make the right of re­dress from the Supreme Court for breach­es of fun­da­men­tal rights by the Gov­ern­ment mean­ing­less, if the courts are not in­de­pen­dent and im­par­tial, or if the courts be­come the tool of the Gov­ern­ment. The rule of law, there­fore, would not be able to be en­joyed if the draft con­sti­tu­tion be­comes law.

The pro­vi­sions in the draft con­sti­tu­tion may give to some a cos­met­ic ap­pear­ance that democ­ra­cy and the rule of law would be en­joyed. In ex­am­in­ing the draft con­sti­tu­tion, we can­not look on­ly at its form; we have to look at its struc­ture and frame­work. Its form may give a cos­met­ic ap­pear­ance that democ­ra­cy is safe, but in ex­am­in­ing the struc­ture, its frame­work and the vast amount of State pow­er giv­en to the ex­ec­u­tive pres­i­dent for him to ex­er­cise over all arms of the State, clear­ly show that the rule of law can­not be en­joyed un­der such a con­sti­tu­tion.

The Ju­di­cial Com­mit­tee of the Privy Coun­cil, in the case of the State of Mau­ri­tius v Khoyrat­ty (2007) 1AC 80 at para­graph 12 de­cid­ed:

"The idea of a democ­ra­cy in­volves a num­ber of dif­fer­ent con­cepts. The first is that the peo­ple must de­cide who should gov­ern them.

"Sec­ond­ly, there is the prin­ci­ple that fun­da­men­tal rights should be pro­tect­ed by an im­par­tial and in­de­pen­dent ju­di­cia­ry. "Third­ly, in or­der to achieve a rec­on­cil­i­a­tion be­tween the in­evitable ten­sions be­tween these ideas, a sep­a­ra­tion of pow­ers be­tween the leg­is­la­ture, the ex­ec­u­tive and the ju­di­cia­ry is nec­es­sary."

Con­sti­tu­tion­al­ism is not de­ter­mined by mere­ly look­ing at the words of a con­sti­tu­tion or its form. There is need to look at the sub­stance of the mat­ter. The doc­trine of the sep­a­ra­tion of pow­ers and the rule of law are at the heart and soul of con­sti­tu­tion­al­ism.

These prin­ci­ples are so vi­tal and im­por­tant for the ex­is­tence of con­sti­tu­tion­al­ism, that courts have de­cid­ed that where the ba­sic struc­ture or frame­work of a de­mo­c­ra­t­ic con­sti­tu­tion is to be al­tered, Par­lia­ment does not have the pow­er to al­ter such ba­sic struc­ture or frame­work.

One such case was de­cid­ed by the Supreme Court of In­dia. That was the case of Bharati v The State of Ker­ala (AIR) (1973) SC 1461. The Supreme Court of In­dia de­tailed six ba­sic el­e­ments of the Con­sti­tu­tion of In­dia. Those six ba­sic el­e­ments are sim­i­lar to the ba­sic el­e­ments which I men­tioned above, and which form the pil­lars of the ex­ist­ing Con­sti­tu­tion of Trinidad and To­ba­go. The Supreme Court of In­dia held that Par­lia­ment could not al­ter the ba­sic struc­ture or frame­work of the Con­sti­tu­tion of In­dia.

Ramesh Lawrence Ma­haraj, SC At­tor­ney-at-law

Pres­i­dent of the Trinidad and To­ba­go Civ­il Rights As­so­ci­a­tion

Email: tnt­civil­rights@gmail.com