CJ’s point on AG is legitimate

THE EDITOR: I am writing in response to the September 18 2003 editorial entitled “The CJ’s question.”

In essence, the editorial said that the CJ’s proposal for an independent person to speak on behalf of the Judiciary in Parliament was “theoretical and has little or no basis in the practical realities of governmental administration.” The CJ was invited by the Editor to consider the role of the Lord Chancellor. It was said that it would “be sacrilegious for anyone to argue that because he is a politician the Lord Chancellor is unfit to head the Judiciary in Britain.” I respectfully disagree with this statement. The following is an extract from a Department for Constitutional Affairs Consultation Paper (in England) dated September 2003, entitled: “Constitu-tional Reform: Reforming the Office of the Lord Chancellor.” The present Lord Chancellor, Lord Falconer says, “It can no longer be appropriate for a senior judge to sit in Cabinet or for a Government Minister to be our country’s senior judge.”

In England, sweeping constitutional reform has been proposed. The position of the Lord Chancellor will be abolished. His power to appoint judges would, in future lie with a Judicial Appointments Commission (a system which already exists in Trinidad and Tobago). There will also be the establishment of a Supreme Court. I don’t propose to go into details on these matters but the full text of the report can be obtained from the Lord Chancellor’s website: http://www.lcd.gov.uk/consult/gencurfr.htm. Is the CJ’s proposal too theoretical or is the problem that it breaks too much tradition? Let me refer to your example, the Lord Chancellor. The position has long been lamented for its adverse impact on the Separation of Powers doctrine. Until now reform was avoided because of the complexities involved in finding a solution and tradition. Indeed the post has existed since the tenth century. Lord Falconer says in the above-mentioned report, “Our existing arrangements have become increasingly hard to sustain, even as we seek to persuade developing countries to adopt clearer constitutional mechanisms and provide for the insulation of the judiciary from political pressures. But we have hitherto not followed our own advice.”

A balance must be struck between tradition and the need to maintain an independent judiciary. It is interesting to note that the Attorneys General of India, Kenya, Singapore, Sir Lanka, Malta, Cyprus, Botswana, the Bahamas and the Seychelles are all public officials who are independent of politics. I take the Editor’s point, that it is wrong to assume that by entering and serving political posts persons lose their capacity to be fair and even-handed. However, the CJ has voiced a legitimate concern of the judiciary. Ultimately the office of the Attorney General is a political one. It is not a concern that is alien to other Commonwealth jurisdictions. What is important is that the issue is out in the open and that this will hopefully stimulate debate. This in turn may or may not result in constitutional reform.

ROSLYN HOSEIN
Arima