PM correct in writing Sharma

NOT only was it “perfectly proper” but it was “absolutely imperative” for Prime Minister Patrick Manning to write to Chief Justice Sat Sharma seeking an explanation regarding complaints against him (Sharma) by the Director of Public Prosecutions (DPP) and others. This according to a constitutional expert who spoke to Newsday on the issue. The legal expert was asked to respond to the view being expressed in some quarters that it was inappropriate for Manning to write Sharma and that President George Maxwell Richards should have written Sharma  instead.

The PM’s action constituted a breach of the principle of the separation of powers, such persons argued. But the expert strongly disagreed with this contention. “If the Prime Minister has information that leads him to believe the CJ is guilty of such gross misconduct that he (the CJ) should be investigated, and draws that information to the attention of the Chief Justice, giving him the chance to refute or explain whatever the circumstances were, then in writing (to Sharma) this is what he (Manning) was doing.”

Noting the Prime Minister met Sharma first and then wrote to him, the expert stated: “In writing to Sharma, he (Manning) was saying ‘look here, I am not asserting a right to query what you do, but I am saying owing to information I have,  I have to consider whether I exercise the power conferred on me by the Constitution (to have a tribunal appointed). And in order that I take a decision on whether to invoke these powers, I am asking you for your side of the picture and then I will decide’.” Not to have followed this course of action would have been a denial of natural justice, the legal expert added. “If the PM were to proceed and advise the President to appoint a tribunal, that is already a great smear on the Chief Justice. And before he (the PM) takes any such step that can put the Chief Justice under a cloud, he must say to the Chief Justice ‘this is the evidence before me, have you anything to say about it?’.”

“He (the CJ) may say ‘that is rubbish, I never said or did any of those things.’ But it is on the basis of what the Prime Minister has, plus what he is supplied by the CJ, that he (the PM) can then say he made the decision in these circumstances to refer the matter to a tribunal via the President.” Using a hypothetical situation, the legal expert stated supposing persons came to the Prime Minister saying the Chief Justice asked them for $10,000 to have a particular matter decided in their  favour.  This, of course, would be clearly wrong because, “you can’t have a Chief Justice bartering justice or rather injustice in that way,” the source said. “Or on the other hand, there may be people who had judgments against them from the Chief Justice and they want to get even with him. So that in order to be fair, the Prime Minister must write the CJ. “If he (the Prime Minister) thinks the case is strong on the basis of the evidence before him, the PM might decide to proceed. If however on the basis of the CJ’s reply, the PM thinks he should go no farther, then the matter rests there,” the legal expert told Newsday.

The expert was also asked whether the President had any discretion under the Constitution to refuse to act once the Prime Minister decided to have a Tribunal appointed. “No, he (the President) has no right to make a determination (on whether a Tribunal should be appointed or not). What he has a right and a duty to do is to talk to the Prime Minister and say, ‘Prime Minister, have you considered this, that or other?’ And he (the President) puts up all the arguments why it should not be done. And he asks the Prime Minister to consider these carefully and come back to him”. “If when he has done that, the Prime Minister comes back and says ‘I have considered all the points you mentioned very carefully. I now call upon you to appoint the tribunal’, then he (the President) has no choice,” the legal expert stated.

The expert explained that the President was not a mere rubberstamp and could use his persuasive powers if he believed there was no good ground for proceeding. But once, despite all the President’s effort, the Prime Minister was intent on appointing the tribunal, the President had to concede and act on the Prime Minister’s advice in accordance with the Constitution. Section 137 (3) of the Constitution states: “Where the Prime Minister represents to the President in the case of the Chief Justice, that a judge ought to be investigated, the President shall appoint a tribunal which shall consist of a chairman and no less than two other members elected by the President, acting in accordance with the advice of the Prime Minister.”

Asked what was the thinking of the framers of the Constitution when they decided to give to the Prime Minister power to initiate action which could lead to the removal from office of a Chief Justice, the legal expert pointed out that that provision was inserted in the Independence Constitution. He said at the time of the Independent Constitution, there was no President but rather a Governor General, who was under the thumb of the Prime Minister and who held office at Her Majesty’s pleasure. “The Queen (or her Majesty) in that context was the Queen of Trinidad and Tobago and therefore the person whose pleasure it was (that the Governor General hold office) was the Prime Minister. “So you could not give power to the Governor-General to do something which might conflict with what the Prime Minister wanted. He (the PM) would just fire the Governor-General and that’s all.”

The expert stated that “unfortunately” when the Republican Constitution was drafted, the framers of that document did some copying of what had been there before. “Whereas before (in the Independence Constitu-tion) the Chief Justice was appointed by the Governor General in accordance with the advice of the Prime Minister and therefore it was proper that he be removed in effect by the Prime Minister. But since in the Republican Constitution the Chief Justice is appointed by the President (in his own discretion) after consultation with the Prime Minister and the Leader of the Opposition, it would have been more logical if this (section 137 which deals with the CJ’s removal) had been amended to say that he (Chief Justice) can be removed by the President after consultation with the Prime Minister and the Leader of the Opposition.”