The court interprets the Constitution

In an earlier article I alluded to the need for judges and judicial officers to be insulated from extraneous influences that obtrude on their ability to be impartial and independent. I might also add that the procedures for nominating, appointing, confirming, transferring, removing and disciplining such officers are clearly spelt out so that they can perform their functions according to their respective concepts of justice and their duties, within the framework of certain written and unwritten codes of conscience and conduct, and their best judicial judgements. I use the word “conscience” guardedly and I do not suggest for one moment that one’s own moral and spiritual values should be substituted for a legal judgement, although it may be sometimes difficult not to be influenced by certain generally accepted moral or ethical values.

The “procedural protective protocols” do not however give blanket protection against action designed to deal with misconduct, infirmity of mind or body or what is termed “other cause,” which I presume refers to some specific legally identifiable infraction. You might well ask: “Who will judge the judges? Who will ensure that justice be done, even though the heavens fall?” In any case, concepts of what is just varies over time and from one cultural matrix to another. One recalls the “eye for an eye and tooth for a tooth and one can also recall Pontius Pilate” washing his hand, turning to a multitude and asking “What is justice?” But refused to wait for an answer. It’s been said of the famous British jurist, Lord Denning, that “He dared to render “justice” no matter what the law required.” There’s also the oft-quoted “Justice is no cloistered virtue” and it must be subject to general scrutiny, or some such thing. It’s however not difficult to see why the Constitution of the Republic of Trinidad and Tobago (like some other constitutions) goes to great lengths to secure the independence of the judiciary when one considers that the Constitution is Supreme Law and the court is the ultimate interpreter of the Constitution.

I might, however, hasten to add that our highest court is the “Privy Council.” And we are not only guided by but are bound by its opinions/decisions and admonitions. One of the recent decisions handed down suggests that their “interpretive function” can conceivably result in, however unwittingly, subverting (and I’m not here suggesting malice or ill will) and/or remaking our laws so that they are in consonance with juridical trends in Britain and even the developing European community mega-state. The question of our own sovereignty and the developing of our own jurisprudence could well be the victims of our own local political posturing. We cannot take too seriously the posturings of our Mr Facing-both-ways who, depending on what suits his convenience - and may well be motivated by purely personal considerations - tells the “Privy Council” to “back off” one day and “thanks God for the Privy Council,” the next.

We should all know, by now, that the zigzagging posturings of our politicians are dubious ruses to camouflage empty “skulls behind dark glasses.” For a moment there, I thought that I might have been straying out of my depth, but I’m presumptuous enough to feel that I may be in “good company.” Hear Lord Hoffman: “It is an extraordinary fact that for nearly nine years I have been a member of the final court of appeal for the independent Republic of Trinidad and Tobago, a confident democracy with its own culture and national values.” Hoffman continued, “This is the first time that I have set foot on these islands (Trinidad and Tobago). “A diplomatic Lord Hoffman continued: “...despite trying its best, the Privy Council was handicapped by its remoteness and cautiousness.”

Now I’m not being facetious when I admit that I’m no Lord Hoffman - not even “Lord of the flies” - but it doesn’t take a Privy Councillor to convince me that, “Different rights, as stated in abstract and general terms, have to be reconciled with each other and compromises made.” Said Lord Hoffman, “These decisions cannot be made on abstract philosophical grounds, they must reflect the practical needs and values of the society....Different societies have different compromises.... The practical interpretation of human rights must be therefore rooted in national circumstances, and that’s why the final court of appeal should be part of the society.”

If I might add my own two-cent bit, it goes without saying that the highest court is not final because it is infallible but it is presumed infallible because it is final. Before anyone jumps on my case to point out that very few cases ever reach the Privy Council, except the murder cases, may I call on the learned judge to the rescue. Said Hoffman, “...a court of final appeal isn’t so much to decide on individual cases but to interpret the law to settle questions of law of general public importance, and by far the most important are those which concern the interpretation of the constitution.” To return to my own modest comments, it follows then that the court is empowered to decide on the legality of any act of the legislature or executive to determine whether it is at variance with any provision of the constitution. As I understand it, the court’s interpretation sets the limits of legislative and executive powers vis-a-vis the rights and freedoms of individual citizens and this function should not be construed in the same manner and on the same principles as the licensing of dogs or cock-fighting.