Tony Fras­er

The threat posed to the Ju­di­cia­ry by the all-in­clu­sive pow­ers of the Prime Min­is­ter is not any­where near as ap­par­ent and patent­ly against the doc­trine of the sep­a­ra­tion of pow­ers as is the con­trol of the Par­lia­ment by the Prime Min­is­ter and the Cab­i­net.

Nev­er­the­less, in the search for ar­eas of the 1976 Re­pub­li­can Con­sti­tu­tion which are in des­per­ate need of re­form to achieve, among oth­er things, mean­ing­ful sep­a­ra­tion of pow­ers among the Par­lia­ment, the Ex­ec­u­tive and the Ju­di­cia­ry, there is need to fo­cus on as­pects of the Ju­di­cia­ry which con­tin­ue to be cap­tive of the Prime Min­is­ter and Cab­i­net.

As claimed in 1999 by Chief Jus­tice Michael de la Bastide, the Gov­ern­ment, through At­tor­ney Gen­er­al Ramesh Ma­haraj, was seek­ing to use Gov­ern­ment's fi­nan­cial con­trol of the ju­di­cia­ry's bud­get and cer­tain as­pects of the hu­man re­sources func­tion of the courts as a means through which it could ex­er­cise some form of con­trol over the Ju­di­cia­ry.

As in­ter­pret­ed by de la Bastide, the ex­er­cise of such fi­nan­cial con­trol over the Ju­di­cia­ry by the AG hav­ing to agree with the fi­nan­cial and ad­min­is­tra­tive pro­gramme of the Ju­di­cia­ry be­fore he could sub­mit it to Cab­i­net and the Par­lia­ment for ap­proval was a threat to the in­de­pen­dence of the Ju­di­cia­ry. Two com­mis­sions, one con­duct­ed by re­spect­ed Caribbean ju­rist Jus­tice Prof Telford Georges, and the oth­er head­ed by Britain's Lord Mack­ay, found dif­fer­ent­ly.

Georges not­ed, "The At­tor­ney Gen­er­al has no re­spon­si­bil­i­ty to Cab­i­net for the ad­min­is­tra­tion of jus­tice. Such a re­spon­si­bil­i­ty would con­note a de­gree of con­trol over the op­er­a­tion of the ju­di­cia­ry, and could not prop­er­ly be giv­en to him." Lord Mack­ay did not agree that there was any di­a­bol­i­cal in­ten­tion on the part of the AG but urged the two arms of Gov­ern­ment to work to­geth­er in the na­tion­al in­ter­est.

Need­less to say, there was dis­agree­ment over the two re­ports. Sub­se­quent­ly, chief jus­tices Sat Shar­ma and, most re­cent­ly, in­cum­bent Chief Jus­tice Ivor Archie, in dif­fer­ent ways have ex­pressed con­cern over is­sues such as the Ex­ec­u­tive hav­ing some form of con­trol over the hu­man re­sources of the Ju­di­cia­ry.

Archie's con­cerns were with the de­lays be­ing ex­pe­ri­enced by the Ju­di­cia­ry with achiev­ing the best and quick­est in­dus­tri­al agree­ments for its hu­man re­sources. He ad­vo­cat­ed that such HR pow­ers be ex­er­cised com­plete­ly by the Ju­di­cia­ry.

Notwith­stand­ing that suc­ceed­ing chief jus­tices have shown them­selves alert to po­ten­tial in­cur­sion, re­al or per­ceived, by the Ex­ec­u­tive which may be ea­ger to ex­er­cise pow­er over the courts while pay­ing lip ser­vice to the sep­a­ra­tion of pow­ers when it makes good po­lit­i­cal copy, there is clear need for fur­ther in­sti­tu­tion­al safe­guards to cre­ate an im­pen­e­tra­ble fire­wall be­tween the Gov­ern­ment and the Ju­di­cia­ry.

One po­si­tion tak­en by Com­mon­wealth lead­ers in the La­timer House Prin­ci­ples for the Com­mon­wealth (2003) was the need to pro­vide ad­e­quate fund­ing for the Ju­di­cia­ry with an­nu­al funds be­ing re­leased to courts on the ba­sis of sub­mis­sions made. Once the Par­lia­ment has passed the bud­get of the Ju­di­cia­ry, the funds must then be re­leased in to­tal with the Ju­di­cia­ry hav­ing the re­spon­si­bil­i­ty to com­pre­hen­sive­ly ac­count at the end of the fi­nan­cial year.

This par­tic­u­lar prin­ci­ple is op­posed to what now ex­ists with the Ju­di­cia­ry hav­ing to con­stant­ly make re­quests for funds al­ready passed by the Par­lia­ment through the min­istry of fi­nance like any oth­er part of the pub­lic ser­vice, clear­ly an un­ten­able sit­u­a­tion which is a sub­tle un­der­min­ing of the in­sti­tu­tion­al in­de­pen­dence of the courts.

So while clear­ly the Ju­di­cia­ry is not sub­ju­gat­ed to the fi­at, likes and dis­likes of the Prime Min­is­ter, as the Cab­i­net and Par­lia­ment are, a full and in­sti­tu­tion­al sep­a­ra­tion of the pow­ers be­tween the Ex­ec­u­tive and the Ju­di­cia­ry has to be achieved.

There are oth­er ar­eas of con­sti­tu­tion­al and oth­er forms of dom­i­na­tion by the Prime Min­is­ter which need to be se­ri­ous­ly ex­am­ined and amend­ed in the con­sti­tu­tion­al re­form ex­er­cise up ahead. For in­stance, why should the Prime Min­is­ter have any say in who should re­ceive na­tion­al awards?

The ex­pe­ri­ence since the start of the in­de­pen­dence awards has clear­ly demon­strat­ed that many awards are giv­en on the ba­sis of po­lit­i­cal af­fil­i­a­tion and oth­er such par­ti­san cri­te­ria.

At present, the Chief Jus­tice heads the com­mit­tee which re­ceives rec­om­men­da­tions of cit­i­zens de­serv­ing of award. How­ev­er, af­ter the com­mit­tee makes its mer­it-based as­sess­ment of the most de­serv­ing, the list is passed on to the Prime Min­is­ter, who then has the pow­er to re­move from the list those not po­lit­i­cal­ly favoured and se­lect those who, in one way or the oth­er, have served or will serve the po­lit­i­cal needs of the Prime Min­is­ter and rul­ing par­ty.

Sim­i­lar­ly, the his­to­ry of al­lo­cat­ing the des­ig­na­tion of se­nior coun­sel to at­tor­neys has been com­plete­ly sub­ject to pol­i­tics. All gov­ern­ments, at­tor­neys gen­er­al and prime min­is­ters have not on­ly award­ed the ti­tle to their friends, fam­i­ly mem­bers and po­lit­i­cal sup­port­ers, but have adorned them­selves, de­serv­ing or not, with the des­ig­na­tion SC.

These process­es have cheap­ened the grant­i­ng of awards by the State, and made them in­to pa­cotille hand­outs for the po­lit­i­cal­ly well-con­nect­ed.