19 Sept 2009

What Archie did

The Constitution of Trinidad and Tobago places a lot of emphasis and importance on the separation of powers between the judiciary and the executive. The judiciary is there to see that the Constitution is upheld by all.

It is not the business of a judiciary to criticise the country's Constitution. We can recently recall the furore that was caused when a judge of the Caribbean Court of Justice adversely commented on the powers vested in the Prime Minister.

A judiciary cannot in the public domain criticise a country's constitution or proposed constitution. To do so will be to breach the separation of powers.

The executive is then free to pass through the breach created. Judges in T&T are protected from action better than Fort Knox. However, that protection comes with many obligations and constraints.

For example, a judge cannot openly belong to a political party. A judge cannot climb on any public platform and criticise or support any matter including the budget allocation.

We in T&T have just witnessed the breach of the separation of powers between the executive and the judiciary on two almost simultaneous occasions.

This has very serious future implications (and present) for any matter that may come before the courts involving the present or any future constitution.

As a matter of fact one breach is so serious and made by a most senior officer that it could trigger the PM to exercise one of the special powers vested in him under the Constitution.

Hilton Charles

via e-mail


There are many instances of the judiciary criticising the Constitution. Case in point, the recent judgement by the judiciary critiquing the fact that the Constitution was illegal from the day it was written by naming the award The Trinity Cross. That was direct criticism of a standing Constitution (or Constitution-in-effect, if you will). The criticism came not only from local courts but also the Privy Council.

The proposed Constitution is not law, and according to Pa-trick is not even a Draft Constitution, more of a 'working document' (whatever the hell that is!). To criticise a document proposing such draconian changes that set us back 'hundreds of years' and erode the right of all the public, is not only right, but necessary!

When Hilton Charles says, "a judge cannot openly belong to a political party. A judge cannot climb on any public platform and criticise or support any matter including the budget allocation" he is also only partly in the right. There is no law that prevents a judge from doing these things, only convention and the need to be seen as totally objective in their positions. Convention is not, and never was, a law. It is merely a position adopted and maintained through habit, for whatever reasons. This is why one magistrate was asked to recuse herself in a trial because she sat on the board of a foundation created for a deceased PNM member. You will recall she refused to do so.

As for the judge who criticised the CCJ, you will realise that what he did was not illegal. Neither was what Archie did.