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Constitutional issues in uncharted waters

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 Queen’s 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 to accept.

“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 10).

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 Majesty’s 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 held locally.

“The persons who sit on this preliminary inquiry are judges or ex-judges. A chairman and two other members constitute a tribunal.

“If this tribunal does not consider that it is appropriate that the question of the judge’s 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 go forward.

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.

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