16 Jul 2019

Rowley’s duty to act on CJ issue

I am glad Israel Rajah-Khan is keeping alive, the issue of the Chief Justice’s (CJ) alleged misbehaviour in office and the Prime Minister’s (PM) silence in that matter. It is not surprising that the PM is silent though. Allegations have since turned up that he was personally involved in the same mess at the same time as the CJ. To probe the CJ might well be shooting himself.

Legally, it appears that the PM has no choice but to refer the matter to the President for a tribunal to be appointed to carry out the enquiry. But as in all Third World countries, leaders play at leading and don’t fully understand that they are no longer petulant school boys. It is why the various governments play at following the Westminster parliamentary system.

In R v Secretary of State for the Home Department ex parte Fire Brigades Union (1995), the court ruled that the relevant minister could not fetter himself by not exercising his discretion to follow the law. So too in Padfield v Minister of Agriculture, Fisheries and Food (1968). Further, the Judicial Committee of the Privy Council (JCPC) in Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago) [2006] UKPC 57, at paragraph 27 Lord Bingham clearly says:

“the court was, however, right to say that if the Prime Minister received a potentially credible report of serious misconduct by the Chief Justice, he had a duty to act and could not simply ignore it.” [Emphasis added].

Once cannot help but wonder had the CJ been of a different ethnicity would the PM had already triggered section 137? The PNM certainly went after Sat Sharma with all the enthusiasm of a Rottweiler going after a roti.

The true power in section 137 of the Constitution is not that the PM has the authority not to act, but that he MUST act and let the chips fall where they may. Once the CJ’s matter was referred to him, his duty was clear. Even if the PM does not want to act, he must give reasons why and those reasons should be rooted in law: Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014.

But in the Third World country that is Trinidad, anything can happen and usually does. I can only hope someone takes this through a judicial review and clarify the legal duty of the PM, once and for all.