?This week, I am dealing with the draft constitution as it relates to the independence of the judiciary. Next week, I shall deal with the proposals as they relate to the Office of the Director of Public Prosecutions and the proposed political control of criminal prosecutions in the country. The draft constitution proposes fundamental changes to the judiciary which, if implemented, would take away its independence and impartiality. An independent judiciary is essential and necessary, in order to have a free democratic society. An independent judiciary has always been recognised as a check against the abuse of accumulated public power in the hands of one individual or a government. The judiciary must remain separate and apart from the Parliament and the government, and should be allowed to function as an independent institution. This is a simple explanation of the principle of the separation of powers, which is the foundation pillar of our existing constitution.
Govt to have control
Mr Manning wants to change this principle of the doctrine of the separation of powers and the independence of the judiciary. He wants to implement measures which would merge some functions of the judiciary with that of the government. In other words, the government would have control of most of the administrative powers and functions of the judiciary now exercised by the Chief Justice. You may ask why is it important to have independent judges and independent courts. Every day, citizens are affected by actions of the government, in one way or the other. There are, therefore, disputes between the government and the citizens on a daily basis. These disputes have to be determined either in criminal courts or civil courts. Judges and magistrates have to be independent of the government in order for them to decide disputes against the government and in favour of the citizens.
The judges of our country are the guardians of the constitution and the protectors of the human and fundamental rights of citizens. Any citizen who feels aggrieved against the government that it has or is violating the fundamental and human rights of the individual can get redress from the High Court, if it determines the issue in favour of the individual. If the government controls the judges, then the court would become a totally useless utility to be the guardian of the constitution and the protector of the rights of the people. If the proposals of the draft constitution relating to the changes in the judiciary are implemented in a new constitution, the executive president would have the power to control the judiciary. The courts would become the President's Courts and the judges would be regarded as the President's judges. The executive president would control the staff of the judges and of the courts, and by the amendments would be able to take away the jurisdiction of the existing Supreme Court and establish courts which would be totally controlled by the executive president.
Clause 121 of the draft constitution takes away most of the administrative functions of the judiciary. It provides that the judiciary shall exercise judicial functions. This amendment is being introduced to limit the judiciary to exercise only judicial functions and to surrender the administrative functions of the judiciary to the government. Clause 123 provides that there shall be a permanent secretary of the judiciary to be appointed by the Public Service Commission, in consultation with the Chief Justice. The Public Service Commission would be appointed by the executive president under the proposed new constitution. The Executive President under Clause 123 would have vested in him power to transfer the permanent secretary of the judiciary. Clause 136 (1) vests the Chief Justice to be responsible for the general administration and business of the Supreme Court, but in Clause 136 (2) limits those administrative powers to be exercised by him only to establish divisions of the Supreme Court and assign judges to sit in such divisions.
Clause 136 (3) gives to a minister of justice, who would be appointed by the executive president, control of administrative matters relating to the judiciary, as may be prescribed. This can only mean prescribed by the executive president, the government which he leads, or by the Parliament. The executive president would control the majority of members of the Parliament. It follows, therefore, that the executive president would determine which administrative powers of the judiciary would be exercised by him through a minister of justice. n Clause 142 would remove the Chief Justice as head of the Judicial and Legal Service Commission.
Judiciary must be independent
The draft proposals give the power to the executive president to appoint the members of the Judicial and Legal Service Commission. This commission would be responsible for the appointment, promotion, discipline and transfer of judges and magistrates. The executive president would, therefore, have control and influence over the appointment of judges and magistrates, their promotion and disciplinary action to be taken against them. It is recognised that personal independence of judges is not sufficient to guarantee judicial independence. Judges must also have institutional independence. A judge's personal independence is incomplete unless it is accompanied by institutional independence of the judiciary. Institutional independence builds a protective wall around the way judges discharge their roles as protectors and guardians of the constitution.
The right of the Chief Justice to be in charge of the administration of the judiciary must be distinguished from the need for the judiciary to account for the expenditures of public funds. Following a dispute between the UNC government and the judiciary, in respect of the then existing procedure for the rules relating to the release and drawdown of funds allocated to the judiciary by Parliament, a commission of enquiry, headed by a former Lord Chancellor of England, was appointed by the then government to chair the said enquiry. He was Lord Mackay. Justice Austin Amissah of Africa and Dr LM Singhvi from India sat with him in the inquiry. The commission was asked to examine the dispute and to make recommendations.
It found, among other things, that the existing judicial and administrative rules and procedure for the release of funds allocated to the judiciary did not offend the principles of independence of the judiciary. However, it recommended that the government gave full support to the development of the Department of Court Administration, which was to take instructions from the Chief Justice, as head of the judiciary, and not from the government. The Department of Court Administration has been responsible for the administration of the judiciary, and it is under the direction and control of the Chief Justice. It accounts to the government for the expenditure of public funds, through the Office of the Attorney General. This is totally different to the proposal in the draft constitution, in which the government wants to have control of administrative matters relating to the judiciary.
Separation of powers
There is another proposal in the draft constitution which also subverts the independence of the judiciary and the doctrine of the separation of powers.
Clause 125 proposes to give to Parliament the power to confer on any court, any part of the jurisdiction and powers conferred on the High Court by the constitution and any other law. Any such law which is introduced would, by the draft constitution, require a simple majority of votes in the Parliament for it to become effective. That clause does not require any such new court which is established to enjoy any constitutional safeguards and protections guaranteed to the independence of the Supreme Court. The Judicial Committee of the Privy Council ruled in the Gun Court case from Jamaica [Hinds v The Queen (1977) AC 195] that Parliament could not constitutionally pass a law which took away the jurisdiction of the Supreme Court and vest it in any court without the guarantees of its independence as part of the Supreme Court.
This proposal, therefore, if made law, would allow the executive president to use his majority in the Parliament to abolish, over time, the Supreme Court, and to establish new courts under the new constitution, which would be the President's Court. The executive president would have all the powers to appoint judges who would be obedient to him. It is significant that the Hon Chief Justice Ivor Archie, in his address at the opening of the 2009�2010 law term, referred to Clauses 121 to 125, 136 and 142, and he stated that if those clauses were made law in Trinidad and Tobago, we shall be taken in the opposite direction to which the rule of law would take us.
The Hon Chief Justice succinctly made the point when he said, in reference to the clauses of the draft constitution, which he referred to in the following words: "In my respectful view, they stem from a fundamental misunderstanding of our role and functions, and have disturbing implications for judicial independence."
In the publication, Tom Bingham and the Transformation of the Law–A Liber Amicorum by Andenas and Fairgrieve (2009) Oxford University Press, on Page 250 states: "In order to discharge their task of rendering judicial decisions fairly and effectively, judges require basic administrative infrastructure, over which they must exercise at least a measure of independent control." If these clauses in the proposed constitution therefore become the law of the land, judges would not have functional independence or institutional independence. The enjoyment of human and fundamental rights and the rule of law would be seriously jeopardised.
The Supreme Court would not be able to be the protector and the guardian of the rights of the people. Prime Minister Manning, as the first Executive President, would not only have control over the judiciary, but he would have the power to use his majority in the Parliament, under the new constitution, to abolish the Supreme Court and establish the President's Court.