Integrity and due process

We should be heartened by the level and intensity of the debate on this issue. Our sense of ownership and consent in respect of our indigenous institutions is crucial to our reassurance, after 50 years of independence, that we are steady, even as we are beset by the inevitable growing pains of a still youthful nation state.

Given this opportunity, the institution itself and all who are legitimately joined in the debate are required to rise to the challenge with maturity to ensure that, while there must be forthright debate and criticism where due, that constructive tone and quality of content form the bedrock of all such criticism, lest we awaken tomorrow to find that we have thrown out the baby, the bath water and the tub.

There is every good reason why the nation must demand that this incident should provide us with a learning experience. How we deal with this will help us build as a nation.

There are issues of transparency and openness and a commitment to holding the JLSC to strict standards of excellence from which no one must shirk, least of all the JLSC. The Law Association is to be commended for having moved quickly to establish a committee to examine and to make recommendations. We should all embrace this initiative and contribute urgently in the national consultation.

I consider it important nevertheless to make one simple point. As egregious as the errors may be that have been committed by the JLSC, there is no basis on which those errors approach even slightly the constitutional threshold for removal from office of a Chief Justice and/or of members of the JLSC. In the case of both the Chief Justice and the members of the JLSC, the Constitution is very clear on the solemn process by which the incumbents in those constitutional offices can be lawfully removed. This removal procedure is prescribed in explicit terms in the case of both the members of the JLSC and the Chief Justice who is ex officio its chairman.

I have had the honour of being appointed counsel to advise two constitutional tribunals, one established to investigate and to advise on the removal of a Chief Justice of TT and more recently the other established in respect of a judge of the Eastern Caribbean Supreme Court.

The threshold of the case to be made out is stated clearly: The incumbent may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of the Constitution.

In order for that to be accomplished a tribunal must be established, comprised of eminent people including former judicial officers and the evidence of culpability or not on the charge brought must be carefully investigated and sifted. The person under investigation must be given a fair opportunity to rebut and test that evidence after which the tribunal may recommend a certain course of action to the head of State.

Simply stated, without burdening this commentary with the reams of judicial authority on the subject from throughout the common law Commonwealth, the apparent errors of process committed by the JLSC in relation to Marcia Ayers-Caesar do not begin to approach this constitutional threshold.

Some members of the Law Association have specially convened an extraordinary meeting to call on the Chief Justice and the members of the JLSC to resign. This is nothing short of an impeachment procedure.

In the exercise of their undoubted right to attend and vote, I would expect that the attorneys present will address and debate the law as the paramount consideration which informs the result they will commit to history.

REGINALD ARMOUR SC via email