Hudson-Phillips pointed out in a letter to Newsday that the acceptance of Silk by the Chief Justice or a member of the Bench “flies in the face of the hallowed principle of the Separation of Powers” and also “compromises the perception of both the Judiciary and the Bar”. Giving an historical background to the award of Silk Hudson-Phillips noted that, originally, a lawyer who had been conferred with Silk “could not appear against the King or Queen without permission, being One of His/Her Majesty’s Counsel”.
Giving added weight to Mr Hudson-Phillips’ arguments was none other than former Chief Justice Michael de La Bastide and former President ANR Robinson. It is an argument with which we totally agree.
The Trinidad and Tobago Constitution is patterned, largely, after the British Constitution in which the Separation of Powers between the three arms of Government — the Legislative, the Executive and the Judicial —is emphasised. We stress in this context the Judiciary’s independence of the Legislative and Judicial arms. The Legislative arm has the power to make laws; the Executive arm to implement them and the Judicial arm the power to interpret the laws. While all of the arms act as a restraint each on the other, it is the Judicial arm which is expected to provide the greatest restraining influence.
It is regrettable that the bestowing of Silk on Chief Justice Archie and Appeal Court Judge, Justice Kangaloo, and their acceptance of it has opened the door to an understandable interpretation that the People’s Partnership Government has abandoned or played around with the principle of the Separation of Powers. Indeed, the two principals, the office of Prime Minister and the office of Attorney General, have in the process appeared to have impacted negatively on the spirit and letter of the Separation of Powers.
While, admittedly, there is an overlap of functions between the Legislative, Executive and Judicial arms of Government, nonetheless after an examination of Hudson-Phillips’ arguments it is difficult not to conclude that the Attorney General and the Prime Minister erred with respect to offering silk to the Head and another member of the Judiciary. Not to mention awarding Silk to themselves.
“The independence of the Judiciary is totally incompatible with holding a title which required service to the Crown/State/Government”, Hudson-Phillips would put forward. “Those who know what Silk is all about”, he argued. “should be aware of this.” It was a grave matter and a serious contradiction for a Judge to request or accept Silk, if offered, as it flew in the face of the hallowed principle of the Separation of Powers, the former Attorney General declared, adding that it also compromised the perception of the independence of both the Judiciary and the Bar.
Even should there be a school of thought which suggests that the Trinidad and Tobago Constitution should be amended to exclude the Separation of Powers we wish to remind that the allocation of power as written in our 1976 Republican Constitution is basically what all democratic systems of government have. Indeed, while there is a call for Constitution Reform, and this is understandable, there has been no public call for the dismantling of the Separation of Powers.
Hopefully, there will be none and should there be it would be rejected outright.
Meanwhile, Hudson-Phillips’ argument that the time had come for “appropriate legislation to be passed setting up a Board for the appointment of Senior Counsel”, is understandable and should be treated with urgency so as to avoid another uncomfortable situation and also more importantly take the matter out of the hands of politicians. But in the meantime, CJ Archie should decline the title, and so too Justice Kangaloo.