By Dr Selwyn R. Cudjoe
March 05, 2018
“The constitutional conventions…provide the flesh which clothes the dry bones of the law; they make the legal constitution work.” —Sir Ivor Jennings
Somehow I can’t get the image out of my mind: a garbage truck, driving into East Dry River and dumping its contents in the middle of a city street. Some say the driver was forced at gunpoint to do so, while others said he showed his loyalty to his friends. The police contend that he dumped the garbage out of spite, malice, or mischief. He was charged “for willfully obstructing the free passage of a road and for littering” (Guardian, February 23).
Four days after Lance Cupidore dumped his garbage, CNN correspondent Clare Garnell reported: “A huge mountain of garbage that towered over the homes in an impoverished district of Mozambique’s capital has collapsed, killing 17 people.” Red Cross spokesman Matthew Cockrane noted that “those affected are the poorest of the poor….They have no choice but to live there, and when there’s heavy rain, they’re the ones who find themselves in the front line.”
On the same day the garbage pile collapsed in Mozambique, Trinidad and Tobago’s Chief Justice dumped his legal garbage on citizens. In November 2017 the Express began to look into the appropriateness of his behavior. Recognizing the stench those accusations were having on the dispensation of justice the Law Association of Trinidad and Tobago (LATT) intervened as mediators.
The CJ immediately served LATT with a pre-protocol letter asking that “no further steps be taken until the high court has pronounced on the legal and constitutional propriety of the association’s proposed action” (Guardian, February 23). Thereafter, the CJ hired five lawyers to ensure his privileges remained intact: “As a judge, I enjoy security of tenure and protection from investigation of the question of my removal from office, save in accordance with the procedures set out under the constitution, undertaken by the persons and the bodies authorized under Section 137 of the Constitution” (Express, February 28).
I am not sure if people make a constitution or vice versa but a constitution represents a code of rules that define the relationship between the people and various officers of government whom the people elect. Whatever rights and privileges the CJ enjoys, he has a corroborating responsibility to be transparent and morally sensitive to the people who elevated him to his “honorable position.” The rights and privileges he enjoys did not descend from heaven; they emanated from a contract with his people that can never be written down or embodied fully in legal language.
Sometimes the unwritten part of a text is just as important as its written dimension. Some call it “conventional morality” (moral principles based on social norms) or “constitutional conventions” (unwritten customs shared throughout the community), which H. Barnett calls “the most significant class of non-legal constitutional rules” (Constitutional and Administrative Law). One may argue that the higher form of moral and/or legal behavior is not derived only from what is written but also from what is just and moral. It’s what ordinary folks call “the decent thing to do.”
I am not a lawyer so I can’t litigate this case. But the meaning of texts—be it legal, theological, or literary—is not confined only to its linguistic dimensions. Umberto Eco, the famous Italian philosopher and semiotician, reminded us: “When we consider a book, we mustn’t ask ourselves what it says but what it means, a precept that the commentators of the holy books had very clearly in mind” (The Name of the Rose).
The CJ is the head of our judicial service, the third person in line to lead the country if the president or the prime minister cannot perform their functions. The CJ may attempt to manipulate the system for his immediate benefit. But the public is not fooled. They do not have to understand legal terms to believe that his actions constitute a breach of faith with those he serves.
Our CJ is a learned man. He is “an honorary member of the temple bench, one of London’s four inns of Court, and is considered a liberal thinker on gay rights” (London Guardian, February 27). He should understand that the head of the judiciary should not be suspected nor allow himself to be suspected of wrongdoing. He must be above suspicion.
Julius Caesar was a major figure in Rome. His wife was associated with Publius Clodius, a notoriously dissolute man of his city. Although he did not believe the rumors about his wife, Caesar divorced her on the grounds that “my wife ought not even to be under suspicion.” This gave rise to the expression: “Caesar’s wife must be above suspicion.”
The CJ will have his day in the legal court and the court of public opinion. In spite of the legal garbage he presents, many people believe he has something to hide. His garbage may not be as pungent as what Cupidore emptied on Observatory Street but it offends our sensibilities nonetheless.
The CJ might prevail in a court of law but he has already lost his standing in the court of public opinion.
He must decide if he is willing to accept the latter verdict even if he achieves a legal victory.