Constitution shields vulnerable

Sir Ellis Clarke has recently suggested that “Constitution reform” is not something that can be rushed but that does not preclude amendments to the Constitution of the TT Republic. Sir Ellis isn’t telling us anything new when, (by implication, at any rate) he seems to suggest that too much power is vested in the office of Prime Minister by the Constitution without, I might add, effective countervailing so-called “checks and balances.” As I understand it, Sir Ellis — a former President and someone who is considered an authority on constitutional matters — has expressed some misgiving re the totality of the role of the office of Prime Minister in effecting “an inquiry into the Chief Justice’s alleged possible misconduct.” The Prime Minister and his AG may be quite correct in saying that they have no constitutional power to remove the Chief Justice but even setting the process in motion requires a more than watertight case and an appreciation of all the ramifications flowing therefrom.

Now politics being what it is and our politicians being what they are, it shouldn’t surprise anyone that Chief Justice/AG/DPP issue has already aroused political and ethnic tensions. Predictably Opposition leader Basdeo Panday publicly claims to have discerned a plot to destroy the reputations of high-profile Indians, himself included. Panday is heard to have made the further suggestion that once the Chief Justice is placed under scrutiny of the constitutionally appointed tribunal and (possibly the Privy Council), “Win, lose or draw, the Chief Justice’s reputation would have been already destroyed,” certainly in the court of our public opinion and beyond. Panday, in his haste to ride the ethnic hobby horse, fails to appreciate that vindication of the Chief Justice (if and when the spit hits the fan) could have deleterious consequences for the reputations of others involved, and more importantly — in my view — for public confidence in the judiciary.

Undermining confidence in the judicial system by their public rantings is nothing new, where certain high-profile members of an earlier political dispensation are concerned. A former CJ openly implied that there was a plot concocted by the then AG and a prominent lawyer, to remove him. Now, I’m well aware that there is the occasional hue and cry about the inadequacies of our constitutional arrangements and the need to rectify them. But I’m not at all persuaded that constitutional reform is the task for any two “political knuckleheads” (whoever they might be) with their attendant minions and poodles. As a matter of fact, I’m yet to be convinced that our politicians have the faintest idea of what constitutions involve. One fellow’s “bright idea” was that the political party that won the most votes would provide the president and the political party that wins the most seats would provide the prime minister. The president, according to him, would set policy and he would then negotiate with the prime minister to have it implemented. So what happens if one party wins both majority of votes and seats? You end up with a prime minister cum president.

Taking the discussion to a more serious level, we tend to be quite tolerant of the political antics and acrobatics of our practising politicians — accustomed as we’ve become to their intellectual and other limitations — but we get a bit (more than a bit) apprehensive and nervous when something seems amiss in the judiciary. Don’t get me wrong. I’m not for a moment suggesting that a judiciary (any judiciary) is ipso facto sacrosanct or that all judges are ipso facto paragons of virtue or judicial rectitude. One of my major concerns is that politicians of all stripes are more concerned with covering their own arses than any issues that they profess, nay pretend, to espouse. Perhaps, instinctively, we recognise that the judiciary is one of the three “independent” pillars upon which our democratic republic presumably rests. The other two pillars are the executive and legislative, which are not my immediate concern. But I’ll eventually deal with that.

The judicial function is entrusted to the courts, which are responsible for administering justice, without fear or favour, malice or ill will. The juridical officers are expected to adjudicate according to the particular merits of the case before them and their best understanding of how the relevant law applies. To ensure the independence and impartiality of judges and those who perform judicial functions, their security of tenure is such as to insulate them from political pressures or extraneous influences emanating from the legislature, executive, privileged or powerful sections of the community or any other source. The procedures for nominating, appointing, confirming, transferring, removing and disciplining such officers, should, I imagine, be clearly spelt out so that they can perform their functions according to their conscience and their best judicial judgement.

That, of course, should not give them blanket protection against action designed to deal with misconduct, infirmity of mind or body or what is termed “other cause”, which I presume is some specific legally established inability to perform their functions. It’s therefore not difficult to see why the Republican Constitution of TT 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. It follows then that the Court is empowered to decide on the legality of any act of the legislature or executive and determine whether it is at variance with any provision of the Constitution.

The “interpretive function” of the judiciary is underscored by the distinct possibility that a government, any government, that does not see itself as limited by the terms of the Constitution is necessarily only limited by the desires, capacities, incapacities and idiosyncrasies of those who exercise political power. Sometimes, the Constitution remains the only shield that the hapless, solitary, aggrieved and defenceless citizen has against the crushing, impersonal might of officialdom. “Once judges are to declare the meaning of the Constitution,” someone asked, “who or what will restrain them from their own infractions?” I recently heard a slogan “No one is above the law.” One might also add, “No one — not even a judge — should be denied its protection and due judicial process.”