This week, I want to deal with three is­sues in the draft con­sti­tu­tion which re­lates to:

The ju­di­cia­ry

The in­tegri­ty laws of Trinidad and To­ba­go

The de­fence of the gov­ern­ment that the con­sti­tu­tion does not give om­nipo­tent ex­ec­u­tive pow­ers to the ex­ec­u­tive pres­i­dent.

These three is­sues sup­port my con­tention that the pro­posed new con­sti­tu­tion would not pro­mote de­mo­c­ra­t­ic val­ues, and that it would, in­stead, be in­im­i­cal to the pub­lic in­ter­est. The first mat­ter deals with the fun­da­men­tal changes to the ad­min­is­tra­tion of jus­tice in Trinidad and To­ba­go. The changes would fa­cil­i­tate the gov­ern­ment to have di­rect in­flu­ence over the ju­di­cia­ry. The ex­ist­ing con­sti­tu­tion­al arrange­ments in­su­late mem­bers of the ju­di­cia­ry from po­lit­i­cal par­ty con­tact and in­flu­ence. This in­su­la­tion would be re­moved, and in­stead mem­bers of the ju­di­cia­ry would have di­rect con­tact and in­flu­ence from politi­cians.

Some of the fun­da­men­tal changes which I am talk­ing about in­clude the pro­vi­sion in the draft for a gov­ern­ment min­is­ter–a Min­is­ter of Jus­tice–to take over some of the ad­min­is­tra­tive func­tions and du­ties re­lat­ing to the ju­di­cia­ry which are now ex­er­cised by the Chief Jus­tice. Oth­er fun­da­men­tal changes in­clude the di­rect in­flu­ence and con­trol of the ex­ec­u­tive pres­i­dent to ap­point mem­bers of the ju­di­cia­ry, to dis­ci­pline them and to re­move them as judges or as a Chief Jus­tice. Clause 125 pro­vides that Par­lia­ment may con­fer on any court any part of the ju­ris­dic­tion now ex­er­cised by the Supreme Court.

This means that the gov­ern­ment, by us­ing its ma­jor­i­ty in the Par­lia­ment, can es­tab­lish new courts un­der its su­per­vi­sion and con­trol and give to these new courts the func­tions and ju­ris­dic­tion of courts now ex­er­cised by the ex­ist­ing Supreme Court. The Gov­ern­ment can, there­fore, trans­fer to new courts the ju­ris­dic­tion of the ex­ist­ing Supreme Court. The new courts cre­at­ed would not have the safe­guards and pro­tec­tion of in­de­pen­dent and im­par­tial judges. The Gov­ern­ment, there­fore, by Clause 125, with a sim­ple ma­jor­i­ty can, over a pe­ri­od of time, abol­ish the ex­ist­ing Supreme Court and make re­dun­dant the ex­ist­ing judges of both the High Court and the Court of Ap­peal.

This point arose in the Ja­maican Gun Court case (Hinds v The Queen) in which the Ju­di­cial Com­mit­tee of the Privy Coun­cil ruled that the gov­ern­ment could not take away the ju­ris­dic­tion of the Supreme Court and give it to a court which did not en­joy the same ju­di­cial in­de­pen­dence as that of the Supreme Court. The same is­sue arose in the ap­peal from Ja­maica, in re­spect of at­tempts by the gov­ern­ment to make the Caribbean Court of Jus­tice the fi­nal Court of Ap­peal for Ja­maica. It was shown that the statu­to­ry in­stru­ments which es­tab­lished the Caribbean Court of Jus­tice per­mit­ted and/or fa­cil­i­tat­ed the in­ter­fer­ence of the prime min­is­ters and the gov­ern­ments of the re­gion in con­trol­ling the ap­point­ment and re­moval of judges of the Caribbean Court of Jus­tice, in­clud­ing the pres­i­dent of the court.

The Ju­di­cial Com­mit­tee of the Privy Coun­cil, about two years ago, held that it would be un­con­sti­tu­tion­al and in breach of the doc­trine of the sep­a­ra­tion of ex­ec­u­tive pow­er from ju­di­cial pow­er to make the Caribbean Court of Jus­tice the fi­nal Court of Ap­peal for Ja­maica. The draft con­sti­tu­tion pro­vides, by Clause 138 to 141, that the Ju­di­cial Com­mit­tee of the Privy Coun­cil would be abol­ished, and that the Caribbean Court of Jus­tice would be the fi­nal Court of Ap­peal for Trinidad and To­ba­go. Clause 182 to 183 would abol­ish the ex­ist­ing in­tegri­ty laws of Trinidad and To­ba­go. Un­der the draft con­sti­tu­tion, on­ly min­is­ters of gov­ern­ment and Mem­bers of Par­lia­ment would be re­quired to make de­c­la­ra­tions in writ­ing of their as­sets, in­comes and li­a­bil­i­ties.

Prime Min­is­ter Man­ning, there­fore, pro­pos­es to abol­ish the present law which re­quires pub­lic of­fi­cials like Calder Hart to de­clare their as­sets to the In­tegri­ty Com­mis­sion, so that the com­mis­sion can de­ter­mine whether the in­tegri­ty laws of the coun­try are be­ing ob­served by pub­lic of­fi­cials. The draft con­sti­tu­tion gives pow­er of the House of Rep­re­sen­ta­tives to add to the list of the min­is­ters of gov­ern­ment and the Mem­bers of Par­lia­ment per­sons who would have to de­clare their as­sets. The present law stip­u­lates the wide net of pub­lic of­fi­cials. That is be­ing abol­ished to give to Pres­i­dent Man­ning the pow­er to use his ma­jor­i­ty in the House of Rep­re­sen­ta­tives to pre­vent the ex­is­tence of such a wide net.

The draft con­sti­tu­tion, there­fore, would le­git­imise Ude­cott-style man­age­ment and in­fringe­ments by state cor­po­ra­tions. Bribe-tak­ing and bribery can be­come the or­der of the day in the ad­min­is­tra­tion of pub­lic au­thor­i­ties by pub­lic of­fi­cials. Some of the of­fi­cials who have been giv­en the job by the Prime Min­is­ter to con­vince the pop­u­la­tion that the draft con­sti­tu­tion is a de­mo­c­ra­t­ic con­sti­tu­tion have been ar­gu­ing that Clause 101 makes it clear that the ex­ec­u­tive pres­i­dent, un­der the draft con­sti­tu­tion, is not om­nipo­tent as claimed. This ar­gu­ment does not have any mer­it and it is an at­tempt to hood­wink the pop­u­la­tion.

Clause 101 states that in the ex­er­cise of the func­tions of the Pres­i­dent un­der the con­sti­tu­tion or any oth­er law, the Pres­i­dent shall act in ac­cor­dance with the ad­vice of Cab­i­net or a min­is­ter act­ing un­der the gen­er­al au­thor­i­ty of Cab­i­net, ex­cept in cas­es where he is re­quired to act in his ab­solute dis­cre­tion or af­ter con­sul­ta­tion with any per­son or au­thor­i­ty oth­er than the Cab­i­net, or in ac­cor­dance with the ad­vice of any per­son or au­thor­i­ty oth­er than the Cab­i­net. The ar­gu­ment is that since the Pres­i­dent would have to act on the ad­vice of Cab­i­net, that the Cab­i­net can pro­vide a check and a bal­ance against any abuse of pow­er by the Pres­i­dent.

This coun­try has seen that Cab­i­net can­not con­trol prime min­is­ters, and al­most all Cab­i­net min­is­ters are sub­servient and syco­phan­tic to their prime min­is­ters. The Pres­i­dent or the Cab­i­net ap­points the per­son or au­thor­i­ty who is re­quired to ad­vise him to act by virtue of the clause. This, in prac­tice, means that the Pres­i­dent would, in nine out of ten cas­es, get his way. Clause 96 vests the ex­ec­u­tive au­thor­i­ty of the coun­try in the Pres­i­dent, who heads the Cab­i­net. The mem­bers are ap­point­ed in his ab­solute dis­cre­tion. There can be no doubt, what­so­ev­er, that the ar­gu­ment that Cab­i­net and these of­fi­cials can act as a check against abuse of pow­er by the Pres­i­dent is not sound.

Those of­fi­cials who claim that the draft con­sti­tu­tion does not give om­nipo­tent pow­er to the ex­ec­u­tive pres­i­dent al­so use the pro­vi­sions of the draft con­sti­tu­tion which re­quire the nom­i­na­tion of ap­point­ments by the Pres­i­dent to be ap­proved by the ma­jor­i­ty of the House of Rep­re­sen­ta­tives to sup­port their ar­gu­ment. The pro­vi­sions of the con­sti­tu­tion which pro­vide for the ap­point­ment of mem­bers of the in­de­pen­dent ser­vice com­mis­sions by the Pres­i­dent re­quire the per­sons nom­i­nat­ed for ap­point­ment to be in­clud­ed in a no­ti­fi­ca­tion to the House of Rep­re­sen­ta­tives which must be ap­proved by it for the ap­point­ment made by the Pres­i­dent to be con­firmed.

The ma­jor­i­ty of the House of Rep­re­sen­ta­tives and the Sen­ate, un­der the draft con­sti­tu­tion, would be con­trolled by the Pres­i­dent, who would, there­fore, have all the pow­er to get sup­port for his ap­point­ments. It is sim­ply not true that these pro­vi­sions would pro­vide any check against abuse of pres­i­den­tial pow­er. On the con­trary, it shows that the Pres­i­dent can abuse ex­ec­u­tive pow­er be­cause of the to­tal con­trol he has in the ex­er­cise of ex­ec­u­tive pow­er.

Ramesh Lawrence Ma­haraj, SC, at­tor­ney-at-law

Pres­i­dent of The Trinidad and To­ba­go Civ­il Rights As­so­ci­a­tion

Email: tnt­civil­rights@gmail.com