Last week, there was an up­roar sur­round­ing the re­place­ment of Deb­o­rah Thomas-Fe­lix as pres­i­dent of the In­dus­tri­al Court with Heather Seale. The ap­point­ment was made by Pres­i­dent Chris­tine Kan­ga­loo af­ter con­sul­ta­tion with Chief Jus­tice Ivor Archie un­der sec­tion 4(3)(a)(ii) of the In­dus­tri­al Re­la­tions Act (Ch. 88:01 of the Laws of Trinidad and To­ba­go).

It was ob­vi­ous that the in­for­ma­tion about a pend­ing change was leaked be­fore the new ap­point­ment was made. The Joint Trade Union Move­ment sent a let­ter to the Pres­i­dent of the Re­pub­lic to re­quest the con­tin­u­a­tion of Deb­o­rah Thomas-Fe­lix as pres­i­dent of the court.

The Law As­so­ci­a­tion put out a sting­ing state­ment ad­vo­cat­ing for change in the process of ap­point­ing In­dus­tri­al Court judges. The most telling blow in their state­ment aimed at the Of­fice of the Pres­i­dent of the Re­pub­lic with the fol­low­ing words:

“But giv­en that the Pres­i­dent of the Re­pub­lic her­self is ef­fec­tive­ly elect­ed to her of­fice by the Gov­ern­ment, it is hard to elim­i­nate al­to­geth­er the per­cep­tion, if not the risk, that an in­cum­bent pres­i­dent of the In­dus­tri­al Court might strive to avoid alien­at­ing the Gov­ern­ment in or­der to pave her way to re-ap­point­ment. More­so, since the reap­point­ment process is nei­ther trans­par­ent nor guid­ed by any ob­jec­tive­ly ver­i­fi­able stan­dards, Her Ex­cel­len­cy is not re­quired to give any rea­sons for her course of ac­tion.” (Guardian, De­cem­ber 15, 2023, sto­ry by Chester Sam­bra­no).

This part of the state­ment sound­ed more like it could have come from the Op­po­si­tion who had gen­er­al­ly been mak­ing the same point ear­li­er this year when the elec­tion of the Pres­i­dent took place in Feb­ru­ary.

This state­ment is re­al­ly a telling blow to the in­de­pen­dence of the of­fice of the Pres­i­dent of the Re­pub­lic. By say­ing that “the Pres­i­dent of the Re­pub­lic her­self is ef­fec­tive­ly elect­ed to her of­fice by the Gov­ern­ment …” is to per­son­alise the crit­i­cism against the cur­rent hold­er of the of­fice and to taint all of her ap­point­ments made af­ter con­sul­ta­tion or in her own de­lib­er­ate judge­ment with a Gov­ern­ment brush.

The pro­vi­sions in the In­dus­tri­al Re­la­tions Act go back to 1972 when the leg­is­la­tion was passed as Act No 23 of 1972. In those days, we were still a monar­chy with the Gov­er­nor-Gen­er­al mak­ing the ap­point­ments. Ac­cord­ing to the orig­i­nal sec­tion 4(3)(ii) of the 1972 Act the pres­i­dent of the In­dus­tri­al Court was: “a per­son who has the qual­i­fi­ca­tion (age ex­cept­ed) to be ap­point­ed a Judge of the Supreme Court of Ju­di­ca­ture and is ap­point­ed by the Gov­er­nor-Gen­er­al af­ter con­sul­ta­tion with the Chief Jus­tice …”

The on­ly item that changed in this sub­sec­tion was that T&T be­came a re­pub­lic in 1976 and the Gov­er­nor-Gen­er­al was re­placed by the Pres­i­dent. In the 1962 Con­sti­tu­tion, there was no for­mal recog­ni­tion of the pow­er of con­sul­ta­tion for the of­fice of Gov­er­nor-Gen­er­al in sec­tion 63 of that Con­sti­tu­tion. In the cir­cum­stances, it is dif­fi­cult to en­vis­age how the pow­er of “con­sul­ta­tion” would have been ex­er­cised by the Gov­er­nor-Gen­er­al see­ing that the Chief Jus­tice was ap­point­ed by the Gov­er­nor-Gen­er­al on the ad­vice of the Prime Min­is­ter in sec­tion 79 of that Con­sti­tu­tion.

Af­ter we be­came a re­pub­lic in 1976, the pow­ers of the Pres­i­dent were al­tered in­so­far as there was in­clud­ed a spe­cif­ic pow­er of con­sul­ta­tion that did not ex­ist be­fore 1976 for the Gov­er­nor-Gen­er­al.

That pow­er is now ex­er­cised by the Pres­i­dent en­gag­ing in con­sul­ta­tion with named of­fice hold­ers and then the Pres­i­dent makes up his or her own mind as to what course of ac­tion they will take. That process has been in place since the mod­i­fi­ca­tions to the In­dus­tri­al Re­la­tions Act af­ter 1976.  

For all these years that has been the process and in De­cem­ber 2023 there is a ma­jor out­cry about the process be­cause of the change from Deb­o­rah Thomas-Fe­lix to Heather Seale. Why this sud­den up­surge in con­scious­ness? What caused this to hap­pen?

The trade union move­ment is di­vid­ed with JTUM and NATUC on one side and the All-Trinidad Sug­ar Work­ers union on the oth­er side. Var­i­ous Cham­bers of Com­merce have weighed in on the process and the Law As­so­ci­a­tion is lead­ing the charge.

Was there some ma­jor sys­temic flaw by which Thomas-Fe­lix was ap­point­ed in De­cem­ber 2011 by Pres­i­dent George Maxwell Richards that was nev­er fixed and now needs fix­ing be­cause she was not reap­point­ed as pres­i­dent of the In­dus­tri­al Court by Pres­i­dent Chris­tine Kan­ga­loo?

All of a sud­den there is this call for the Cab­i­net to be re­moved from the process of hav­ing a say in the ap­point­ment of the oth­er In­dus­tri­al Court judges. There has been si­lence since 1976. What is the trig­ger now?

Prof Hamid Ghany is a Pro­fes­sor of Con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies at The Uni­ver­si­ty of the West In­dies (UWI). He was al­so ap­point­ed an Hon­orary Pro­fes­sor of The UWI up­on his re­tire­ment in Oc­to­ber 2021. He con­tin­ues his re­search and pub­li­ca­tions and al­so does some teach­ing at The UWI.