Amending the Constitution

The recommendation for a Constitutional amendment, made last week by former President Sir Ellis Clarke, should provide a nice little test case for our political leaders. Sir Ellis noted that the hurried drafting of the Republican Constitution of 1976 had led to an anomalous situation in respect to the appointment and the removal of the Chief Justice. But, while it is true there’s many a slip ‘twixt cup and lip, we wonder whether this anomaly was not only the result of haste, but also the traditional tendency to see the Prime Minister as the rightful centre of all power. Because, in retrospect, it seems astonishing that the drafters of the Republican Constitution could have overlooked such a crucial aspect of the separation of powers: unless, of course, such separation was not considered crucial.

The anomaly starts with Chapter 7, Part 1, section 102 of the Constitution, which deals with the appointment of the Chief Justice. This states: “The Chief Justice shall be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition.” Logically, what should follow is that the removal of the CJ can only be effected by the President after consultation with the Prime Minister and the Opposition Leader and the appointment of a tribunal. However, Chapter 9, Part II, Section 137, sub-section 3 of the Constitution states: “Where the Prime Minister, in the case of a Chief Justice…represents to the President that the question of removing a judge under this section ought to be investigated, then — (a) the President shall appoint a tribunal which shall consist of a chairman and not less than two other members, selected by the President acting in accordance with the advice of the Prime Minister in the case of the Chief Justice…”

So we see, that whereas the President, in appointing the CJ, needs only to consult the Prime Minister, the President must follow the Prime Minister’s advice with respect to any removal of a Chief Justice: Meaning that this power of removal is essentially vested in the Prime Minister. And it is astonishing that, especially after the 18-18 deadlock generated such a flurry of Constitutional analysis, none of our political commentators detected this fundamental flaw. Instead, as is usually the case, it has taken a crisis for us to recognise our deficiency. Fortunately, this stable door can still be bolted. The question is, does the political will to do so exist? Both the Government and the Opposition continue to pay lip service to constitutional reform.

But the Opposition is yet to present a comprehensive proposal on such reform, while the Government only recently passed the Anti-Terrorism Bill with a simple majority, even though certain clauses of that Bill contravene entrenched rights. In this matter, however, Sir Ellis points out that we are not talking about reform, but a simple amendment. Opposition Leader Basdeo Panday has backed Sir Ellis’ suggestion to shift power from Prime Minister to President in the removal of a CJ (although, given the Opposition’s standard argument that the President is a creature of the ruling party, Mr Panday’s approval must be seen as conditional).

But the ball is really now in Mr Manning’s court. Of late, the Prime Minister has been trying very hard to play the Caribbean statesman. But the true test of statesmanship is the willingness to cede power to principle. This recommended amendment reduces Prime Ministerial power, and such reduction has been the central theme in all the calls for constitutional reform. Will Mr Manning now prove his mettle by taking what could be a giant first step?