Who will judge the judges?

In an earlier article (Newsday May 16, 2003) 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 they can perform their functions according to their respective consciences and their best judicial judgments. That does not, however, give them blanket protection against action designed to deal with misconduct, infirmity of mind and/or body or what is termed “other cause,” which I presume has to do with some specific legally established inability to effectively perform their functions. You might well ask: “Who will judge the judges? Who will ensure that justice be done, even though the heavens fall?” One recalls Pontius Pilate, as he washed his hands, turning to the multitude, and asking, “What is justice?” But would not 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 off-quoted “Justice is no cloistered virtue” and it must be subject to general scrutiny or some such. It is, 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. 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 function of the Court to interpret the limits set by the Constitution on executive and legislative actions is of paramount importance to the rights and freedoms of individual citizens, and should not be construed in the same manner and on the same principles, say, as laws regulating the licensing of dogs or cock-fighting.

The interpretive function of the judiciary is underlined by the distinct possibility that if a government — any government — is not limited by terms of a constitution, then (God forbid!) It is necessarily limited by the propensities, capacities/incapacities or idiosyncrasies of those who exercise power. Sometimes the Constitution, buttressed by an independent judiciary and a free and independent press, remains the only shield that the hapless, solitary, aggrieved and defenceless citizen has against the impersonal crushing might of officialdom or even more powerful citizens or organisations. Ideally, the Constitution should protect the weak against the strong and the strong against themselves. Judicial decisions, however, are not always as clear-cut as some would imagine. Sometimes, even for the best legal minds, it boils down to a question of, “...several rivers to cross, which one is the right one?”

In my own little (stupid, you might think) way I’ve been trying to acquaint myself with the provisions of the Constitution and see how much sense I can make of the document, as a whole. It seems to me that one can’t simply look at the Constitution, “...as a little bit of this, a little bit of that and some little bit of some old man’s hat...” but we should consider it against the background of some underlying themes which presumably influenced, if not inspired, its contents and structure. If I might digress a bit, there appears to be a growing interest in constitution reform, there being no dearth of self-anointed experts willing to put their particular formulas on the political market. If you ask me, there appears to be more constitutional formulas than baby food formulas at the supermarkets.

If you ask me again, considering some of the constitution reform formulae, it could be like throwing out the babies with their bath water. A certain political leader’s considered formula is that the party that wins the larger number of votes should provide “the executive president,” whatever that might mean, and the party that wins the larger number of seats would form the government and provide the prime minister. Now, in the event that the same party wins the larger number of votes as well as seats, well somebody would be in a monkey pants, and it wouldn’t be Tarzan’s monkey Cheeta. See what I mean when I express the view that there are only three occasions when our politicians do not think and the occasions are: before they open their mouths, while the mouths are open and after they are closed.)

But more seriously, one can think of a constitution’s underlying themes like, “...parliamentary democracy...collective responsibility...accountability...particularly democracy...separation of powers... and ‘whisper it not in Gath’...morality in public affairs.” Ironically, a constitution is a formula that paradoxically attempts to set limits and allow latitude simultaneously. The question of setting limits and allowing latitude at the same time might have been perceived by Plato when he referred to the inadequacy of words to express the nature of reality. At the risk of sounding “learned,” I might add that this is even more so when one considers that a constitution seeks to come to terms with a changing reality, whose broad outlines may not even be anticipated with any measure of assurance.