Law Association comments on CJ

The Law Association of Trinidad and Tobago has commented on the speech by the Chief Justice Mr Sat Sharma at the opening of the Law term last week. The statement signed by the Association’s President Karl Hudson-Phillips QC, is reproduced below: At a meeting on Wednesday  Septembe 17, 2003 the Council of the Law Association discussed the speech of the Chief Justice at the opening of the Law Term on Tuesday  September16, 2003.

The Council took particular note of the comments by the Chief Justice concerning the relationship between the Judiciary and the Executive and in particular the office of the Attorney General of Trinidad and Tobago. It continues to endorse the absolute requirement for total independence of the Judiciary in the discharge of its role as the arbiter in disputes between citizens and citizens and between citizens and the State. The Council has been aware for some time of the possibility of a Government denying funds to a Judiciary with the intention of making the Judges more pliant to the will of the Executive. The Council wishes to assure the Chief Justice that if ever such a situation were to arise the Association would be most vocal in support of the independence of the Judiciary.

In the past three years two eminent jurists have expressed differing views as to how the administrative arrangements between the Judiciary and the Executive should be structured. Whether the Chief Justice interfaces with the Attorney General or, as he suggests, with the Prime Minister some interfacing with “politicians” is unavoidable. The relationship between the Judiciary, the Executive and the Parliament is arranged in different ways in different countries. In the United Kingdom, until recently, the Lord Chancellor as the highest judicial officer sat in Cabinet. That office has now been abolished. In other countries the appointment of Judges is subject to either direct election or parliamentary approval. In Trinidad and Tobago Judges are appointed on the advice of an independent commission and the Attorney General “argues” the case for the Judiciary in Cabinet and answers questions on its behalf in Parliament. Whatever formula is used, the Council sees the question essentially as one of the necessity to have persons of integrity, balance and fairness holding the relevant offices. Whatever system is devised for the relationship between the Judiciary and the Executive — and the Chief Justice admitted difficulty in proposing an alternative formula — the success of it will depend on those operating the system possessing the qualities stated above. The Council regrets any impression that because an Attorney General is a political appointee for that reason he or she is incapable in some way of faithfully representing the views of the Judiciary to the Cabinet.

Over the past six  years the Council of the Law Association has made recommendations for a change in the system of appointment of Senior Counsel. What the Council maintains is that there must be greater involvement of the Council in the process and regretted the statement that the conferring of Senior Counsel status was “a licence to print money.” The present procedure for appointment to the office of Senior Counsel is to be found in the Extraordinary Gazette of February 15, 1964. This requires members of the Bar desirous of appointment to submit their applications to the Attorney General. On receipt of the application the Attorney General is required to consult the Chief Justice. After such consultation the Attorney General submits his recommendations to the Prime Minister who will advise the Governor General. On October 10, 1997, a further Extraordinary Gazette was published dealing with the question of appointment of Senior Counsel. This publication invited attorneys who wished to be considered to submit applications for appointment as Senior Counsel. The publication also set out the requirements which applicants were expected to meet. At the same time the then Attorney General appointed what he referred to as a Consultation Committee of three Senior Counsel to assist him in the task of assessing the suitability of applicants for appointment. The Attorney General at the time also indicated that he had attempted to obtain the views of the Chief Justice and through him that of all the Judges. There was correspondence at the time between the Council and the then Attorney General. Several points were raised by the Council but there was no suggestion that the Attorney General as titular head of the Bar should be omitted from the process. The Council did not then express the view that the admitted independence of the Judiciary necessitated any greater involvement by the Chief Justice in the process of selection of Senior Counsel.

While the present arrangements continue, it is hoped that the Attorney General will continue to consult the Chief Justice and indeed, through him, all the Judges. It is also expected that the Attorney General will consult the Council and that the independence of the legal profession will be respected and maintained. The Council has been long of the view that enhanced terms and conditions of employment for holders of office in the department of the Director of Public Prosecutions are the key to maintaining proper staff levels and to attracting and retaining experienced staff. The rationale  for the recent improvement in the terms and conditions of employment of medical officers was to narrow the gap between them and other professionals in the private sector. The same is equally applicable to professional staff in the department of the Director of Public Prosecutions. The meeting concluded by endorsing all initiatives by the Chief Justice to strengthen the administration of justice and in particular the administration of criminal justice.

Karl T. Hudson-Phillips, QC
President