By George Alleyne
July 08, 2009 – newsday.co.tt
It is as inexcusably absurd for the Office of the Prime Minister to have so much power under the Constitution with respect to the appointment of the Chief Justice, the Solicitor General and the Director of Public Prosecutions as it is for the Opposition to frustrate Trinidad and Tobago’s complete breakaway from having the Judicial Committee of the Privy Council as this country’s final Court of Appeal.
There is clearly too much power vested in the Office of Prime Minister with respect to the above posts. At the same time we should have the courage to view the Opposition’s insistence on TT’s holding on to the Judicial Committee of the Privy Council as a disgusting colonial mindset. It is inexcusable and humiliating. Already, Guyana, a member of Caricom, has passed a law rejecting the Privy Council as the Country’s final Court of Appeal and having the Caribbean Court of Justice (CCJ) replace it.
Other Commonwealth jurisdictions which have acted as Guyana and enacted enabling legislation have included India, Australia, Botswana, Burma, Pakistan, Canada, Cyprus, Ghana, Nigeria, Sri Lanka, Lesotho, Sierra Leone, Uganda and Tanzania. Trinidad and Tobago, hobbled by the Opposition, has, shamefully, remained with the rest of Caricom, the Channel Islands, the Isle of Man, British colonies and Protectorates and less than a handful of, for the most part, relatively insignificant Commonwealth countries.
Burma, India and Pakistan were among the first to exercise a dignified approach, that of withdrawal from the Privy Council, an approach which has been rejected, repeatedly by TT’s Opposition.
Those opposed to withdrawal from the Privy Council have advanced as their principal arguments, the quality of the Caribbean judiciary, an illogical argument, and the imagined moves of the State to “control” the Judiciary. In the meantime, the Caribbean Court of Justice (CCJ) which was established to replace the Privy Council as the Region’s final Court of Appeal remains, because of the colonial mindset, still prevailing with the Opposition, grossly underutilised.
Until the advent of retired Chief Justice, Justice Cecil Kelsick, (he was from St Kits) no Trinidad and Tobago Chief Justice, since Independence, ever had a law degree. I wish to make clear that any absence of degrees in no way lessened the competence of any TT Chief Justice, Judge, Magistrate or practising lawyer. It was not until sometime after Independence, and the opening of the Hugh Wooding Law School, that having a law degree became more or less the norm for new attorneys. Prior to that, persons wishing to study law needed only to have Cambridge Senior School Certificates, the equivalent of the GCE “O” Levels, to be admitted to any of the four English Inns of Court.
Meanwhile, steps have been taken in the United Kingdom for not only the training of Judges, but the method to be adopted with respect to their appointment. A little more than a decade ago the British Conservative Party had advanced in its manifesto for the then upcoming General Election a plan to set up a Judicial Appointments and Training Commission.
Unfortunately, shortly after the Party was victorious at the polls, and not unlike what obtains in Trinidad and Tobago, it consigned the plan to the dustbin of history. Nonetheless, the Lord Chancellor, Lord Irvine, would, publicly, declare several changes to the then method of appointment of judges. Appointments would remain as in the past, as the Lord Chancellor intimated, based “strictly on merit, after the independent views of the judiciary and the legal profession have been taken into consideration.”
This Column notes for the record two of the changes — the filing of an annual report to the British Parliament on the conducting of the mechanism of judicial appointments and the advertising of judicial vacancies. It would be interesting to see how the advice of the Lord Chancellor with respect to the appointment of judges “strictly on merit after the independent views of the judiciary and legal profession have been taken into consideration” could be applied in Trinidad and Tobago.
In this country, there has been literally no change to Sections 104 and 105 of the 1976 Republican Constitution which deal, specifically, with the appointment of Judges. In turn, the Office of the Prime Minister has too much say in the appointment of the Chief Justice.
We cannot deal with the Judiciary or indeed the Office of the Solicitor General or that of Director of Public Prosecutions as though the authority of the Prime Minister, under the Constitution, is cast in stone.
The 1976 Constitution of Trinidad and Tobago has stood still for far too long and an entirely new and in keeping with the times approach is needed.
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