Can the PM advise the President to suspend the CJ?

Prime Minister Patrick Manning would be left with no alternative but to advise the President to suspend Chief Justice Sat Sharma during the investigation by the Tribunal, in the event that Sharma attempts to block the establishment of the Tribunal, political sources said. To do otherwise would be to leave the Chief Justice in a position where he still heads the Judiciary which has to adjudicate on a matter that he (Sharma) would have initiated at the local courts.

This was the response in political circles to reports that Sharma’s attorneys were on the verge of filing for judicial review, or a constitutional motion aimed at stopping the investigation on the question of his removal from office as Chief Justice. (Sources confirmed yesterday that the motion is to be filed very soon.) However, some constitutional experts argued that it would be “highly inappropriate” to suspend the Chief Justice under such circumstances.

“If even it were legally possible I am absolutely certain that it (the suspension of the Chief Justice) would not be done in practice, because there is an implied stay if the courts grant leave (for judicial review or to hear a constitutional motion)” the expert stated. Asked if the suspension might become even more necessary once the Chief Justice mounts a legal challenge since he (the Chief Justice), by virtue of his position, heads the Judiciary which would be sitting in judgment on a matter which he has brought,  the expert stated: “I don’t think that would be taken into account.”

“He is entitled to go before the court and ask this. Obviously he could not be involved. If it goes before a judge and then there is an appeal, he would not be able to participate at all,” the expert stated, adding that any interference by the Chief Justice would be regarded as further evidence of misconduct. “I am sure that whoever is advising the Prime Minister would advise him that he cannot do that kind of thing,” the expert said. Asked if the window of opportunity for challenging the decision to set up a Tribunal is closed once the President acts (on the advice of the Prime Minister), the expert said: “You can’t bring proceedings against the President, but you can bring proceedings to invalidate something that the Prime Minister or the President has done. You may not mention the President as a defendant, but you can take proceedings to challenge what had been done,” the expert said. The expert added that it would be unusual for the court to issue an injunction against the President. “It would be a declaration or something of the sort or an indication from the court and that would be respected,” the expert said. He added that it would be “almost mandatory” for the President to respect such a declaration.

Proceedings had been brought in 1987 by the newly elected Prime Minister ANR Robinson, challenging the appointment of  Jimmy Bain as chairman of the Public Service Commission  by former President Sir Ellis Clarke. Clarke had made this appointment shortly before he demitted office. In that specific case, the court pointed to the provisions of the Constitution which stated that the question of whether the President has or hasn’t acted in accordance with advice shall not be raised in any court. The constitutional expert was asked if there was any constitutional requirement for the Prime Minister to have signalled to the Chief Justice that he intended to advise the President to set up a Tribunal, or if the Prime Minister could simply have announced the Tribunal. The constitutional expert said: Theoretically the Prime Minister could have just established the Tribunal (without forewarning the CJ) but, it would not have been considered appropriate.”

“The courts would frown upon it. Certainly the Privy Council would,” the expert said. He said just as there was no provision in the Constitution for the Prime Minister to tell the Chief Justice, “look I am considering the question of removing you from office,” but natural justice required that you do it. Similarly, natural justice would require that you inform him, “I am going to do so and so establish the Tribunal.”