As the crisis over the stand-off between the Chief Justice
and the executive branch of government deepens, there is an
even greater need to understand the kind of uncharted constitutional
waters into which the country is plunging.
Last week, I attempted to provide some excerpts from the Queens
Hall conference of 1962 on the issue of the vision of what
was intended by the framers of the independence constitution.
This week, I shall continue in more or less the same vein,
in order to demonstrate the kinds of challenges that face
us as the political will to remove and to resist grows stronger
on either side.
In an explanatory memorandum prepared by the constitutional
adviser to the Cabinet on the draft independence constitution
for Trinidad and Tobago, dated 16th April, 1962, Ellis Clarke
had this to say about the provisions created for the tenure
of office of judges:
Perhaps the most important single feature which goes
to ensure the independence of the judiciary and the attraction
to the judiciary of the right type of judge is the security
of tenure afforded to judges.
For that reason, no attempt has been made in the draft
constitution to be original.
A formula, carefully devised by the Colonial Office,
after many years as being the most likely to be effective
and acceptable, and yet not to derogate from the principles
of independence, has been adopted.
It is word for word the formula that the Colonial Office
was able to persuade Nigeria, Sierra Leone and Tanganyika
There can be little doubt that it is what they would
wish T&T to accept? (Explanatory memorandum by the
constitutional adviser to the Cabinet on the Draft Independence
Constitution for Trinidad and Tobago, 16th April, 1962, P
This memorandum is most instructive in revealing to us the
fact that the provisions regarding the tenure of office of
judges in our independence constitution were virtually lifted
word for word from the independence constitutions of Nigeria
(1960), Sierra Leone (1961) and the then State of Tanganyika,
(1961), which later became Tanzania.
These three countries had achieved their independence from
Britain shortly before we attained ours.
Ellis Clarke went further in his memorandum to say the following:
When the formula is carefully studied and understood,
there is little need to apologise for the lack of originality
in the draft constitution.
The effect is to ensure that the Judicial Committee
of Her Majestys Privy Council, and no one else, can
cause a judge to be removed from his office as such.
It is difficult to imagine how any greater security
can be given to any judge. (Explanatory memorandum by
the constitutional adviser to the Cabinet on the Draft Independence
Constitution for T&T, 16th April, 1962, p. 10).
Ellis Clarke was quite clear about what was intended in the
independence constitution as regards the removal of a judge.
The Colonial Office formula was being imported lock, stock
and barrel, from Nigeria, Sierra Leone and Tanganyika, and
the Privy Council was going to be the final arbiter on the
removal of a judge from office.
His further explanation of the process is also worth noting:
In order, however, that there should be a sifting process
which would prevent any case without merits from even reaching
the Judicial Committee of the Privy Council for its consideration,
there is provision for a kind of preliminary inquiry to be
The persons who sit on this preliminary inquiry are
judges or ex-judges. A chairman and two other members constitute
If this tribunal does not consider that it is appropriate
that the question of the judges dismissal should go
to the Judicial Committee of the Privy Council, then that
question cannot even be referred to the Privy Council.
It is only if that tribunal advises that the question
of the removal of a judge should be referred to the Judicial
Committee that the matter is so referred? (Explanatory
memorandum by the constitutional adviser to the Cabinet on
the Draft Independence Constitution for Trinidad and Tobago,
16th April, 1962, PP 10 and 11).
In his explanation, Ellis Clarke likened the tribunal that
is to be appointed to pre-screening the case for removal to
a preliminary inquiry.
To this end, he was arguing that the case against a judge
could end locally, and never be referred to the Privy Council,
if the tribunal was not satisfied that there was a case to
However, as regards the issue of a case being referred to
the Privy Council by the tribunal, he had this to say:
It is not difficult to imagine how careful such a tribunal
would be to ensure that the Judicial Committee does not find
itself considering any but the clearly substantial case.
Nor is it difficult to imagine the type of comment which
the Privy Council would make if the question of the removal
of a judge was referred to them when there was no ground for
so referring it.? (Explanatory memorandum by the constitutional
adviser to the Cabinet on the Draft Independence Constitution
for T&T, 16th April, 1962, PP 10 and 11).
Ellis Clarke was clearly alluding to the fact that the reputation
of the members of any tribunal would be at stake if they were
to refer a weak case to the Privy Council for their consideration.
As far as he was concerned, the Privy Council would be scathing
in their comments on the members of any such tribunal if a
matter came before them on referral that ought never to have
been sent to them in the first place.
These provisions have largely been retained in our republican
constitution, as the President has obviously been substituted
for the Governor-General.
Their intent, as devised by the Colonial Office in the 1960s,
has never changed. They just have not been used and, in the
current controversy, remain unused.