CHESTER SAM­BRA­NO

Lead Ed­i­tor - News­gath­er­ing

chester.sam­bra­no@guardian.co.tt

The Law As­so­ci­a­tion of Trinidad and To­ba­go (LATT) is call­ing for changes to be made to the process of reap­point­ing judges of the In­dus­tri­al Court.

The call came in a me­dia re­lease yes­ter­day, days af­ter the Joint Trade Union Move­ment (JTUM) and the Na­tion­al Trade Union Cen­tre (NATUC) raised con­cerns about Pres­i­dent Chris­tine Kan­ga­loo’s de­ci­sion not to re­new the con­tract of for­mer court pres­i­dent Deb­o­rah Thomas-Fe­lix and not­ed a pos­si­ble con­flict of in­ter­est over Kan­ga­loo’s hus­band’s mat­ters in the court.

Thomas Fe­lix, who was in Gene­va, Switzer­land, was re­port­ed­ly called by Kan­ga­loo days be­fore her con­tract was about to ex­pire.

In its state­ment yes­ter­day, the Law As­so­ci­a­tion first con­grat­u­lat­ed Heather Seale on her ap­point­ment as new pres­i­dent of the In­dus­tri­al Court.

The LATT al­so record­ed its pro­found grat­i­tude to out­go­ing pres­i­dent Thomas-Fe­lix for her yeo­man ser­vice to Trinidad and To­ba­go.
It said her tenure as pres­i­dent of the In­dus­tri­al Court will be re­mem­bered for her ster­ling con­tri­bu­tion to the de­vel­op­ment of good in­dus­tri­al re­la­tions prac­tice in the em­ploy­ment sec­tor.

But the LATT al­so echoed the con­cerns ex­pressed by some mem­bers of the pub­lic re­gard­ing the sys­tem of ap­point­ment and re-ap­point­ment of judges of the court, which, as the Caribbean Court of Jus­tice ob­served in a re­lat­ed con­text, “lends fragili­ty to ju­di­cial in­de­pen­dence.”

It ex­plained that for the ben­e­fit of the pub­lic, judges of the In­dus­tri­al Court are ap­point­ed for pe­ri­ods of at least three but not more than five years at a time and are el­i­gi­ble for re-ap­point­ment.

Dur­ing their term of of­fice, LATT said they en­joy fi­nan­cial se­cu­ri­ty and se­cu­ri­ty of tenure, and to that ex­tent, their in­de­pen­dence is as­sured.

That in­de­pen­dence, ac­cord­ing to the Law As­so­ci­a­tion, be­comes frag­ile when a judge who wish­es to pur­sue a ju­di­cial ca­reer at the court seeks re-ap­point­ment.
It said were it the case that the de­ci­sion to re-ap­point a judge of the In­dus­tri­al Court was made by the Ju­di­cial and Le­gal Ser­vice Com­mis­sion, that con­sti­tu­tion­al arrange­ment would have been de­signed to en­sure ju­di­cial in­de­pen­dence.

But the pow­er to re-ap­point all judges of the court, with the ex­cep­tion of the pres­i­dent, is vest­ed ef­fec­tive­ly in the Cab­i­net, which ad­vis­es the Pres­i­dent of the Re­pub­lic on who should be re-ap­point­ed.

On the oth­er hand, the pres­i­dent of the court is ap­point­ed by the Pres­i­dent of the Re­pub­lic af­ter con­sul­ta­tion with the Chief Jus­tice.

“The fear that ju­di­cial in­de­pen­dence may be com­pro­mised in the sys­tem of re-ap­point­ment aris­es from the fact that, whether through statu­to­ry cor­po­ra­tions, such as WASA and T&TEC, or State en­ter­pris­es, such as Caribbean Air­lines, or di­rect­ly as the em­ploy­er of pub­lic ser­vants, the Gov­ern­ment is a par­ty to many dis­putes and mat­ters be­fore the In­dus­tri­al Court. The un­com­fort­able sit­u­a­tion cre­at­ed by law, there­fore, is that judges of the In­dus­tri­al Court are called up­on to ad­ju­di­cate on the mer­its of cas­es pre­sent­ed to it by the very per­son who has the pow­er to de­cide whether the judge should be re-ap­point­ed at some lat­er point in time,” LATT said.

“It is, there­fore, not dif­fi­cult to ap­pre­ci­ate that trade unions rep­re­sent­ing work­ers em­ployed by gov­ern­ment en­ti­ties might be jus­ti­fi­ably con­cerned that a judge whose term of of­fice is near ex­pi­ra­tion and who wish­es to be re-ap­point­ed might hes­i­tate be­fore giv­ing judg­ment against the Gov­ern­ment.”

The LATT said as T&T’s high­est court put it in a sim­i­lar con­text, there is a risk that a judge seek­ing re-ap­point­ment might seek to com­mend them­selves to the Gov­ern­ment as the au­thor­i­ty “with pow­er to meet her wish­es.”

“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.

“The as­so­ci­a­tion has­tens to make clear that there is no ba­sis for any sug­ges­tion that the Pres­i­dent’s de­ci­sion not to re-ap­point Her Ho­n­our Mrs Thomas-Fe­lix was car­ried out oth­er than strict­ly in ac­cor­dance with the law,” it said.

The as­so­ci­a­tion added: “How­ev­er, it is in­cum­bent up­on us to note and to warn that for as long as judges of the In­dus­tri­al Court are per­ceived to de­pend up­on the Gov­ern­ment for their re-ap­point­ment to the Court, con­cerns about the In­dus­tri­al Court’s ju­di­cial in­de­pen­dence will re-sur­face. We urge the Gov­ern­ment to se­ri­ous­ly con­sid­er ap­pro­pri­ate amend­ments to the In­dus­tri­al Re­la­tions Act to vest the pow­er of re-ap­point­ment, at least in the Ju­di­cial and Le­gal Ser­vices Com­mis­sion.”