Today, I want to deal with the rule of law, in relation to the draft constitution which, if implemented, would deny individuals in Trinidad and Tobago the enjoyment of the rule of law, and would render their right to apply to the High Court for redress against the Government for the violations of their fundamental rights useless. I have already demonstrated that the draft constitution offends the basic principles of the separation of powers and the independence of the judiciary. The six basic elements of our existing constitution would not be enjoyed if the draft constitution becomes law. Constitutionalism recognises that democracy and the rule of law cannot be enjoyed in a society in which a head of government or head of state controls the three arms of the State.
The three arms of the State are the executive, the legislature and the judiciary. I have already shown, in previous articles, that the executive president, under the draft constitution, would have control of the executive, the legislature and the judiciary. Under our existing system of government, the constitution prohibits the executive from controlling the judiciary. Under the existing constitution, the prime minister is prohibited from exercising the functions of head of state and is prohibited from exercising administrative powers of the judiciary. Under the existing constitution, the Government cannot use its simple majority in Parliament or its three-fifths majority to pass any law to take away the jurisdiction of the Supreme Court.
The provisions of the draft constitution would, however, give the Government those powers. The six basic elements which I spoke about and which form the pillars of the existing constitution are:
1. The supremacy of the constitution.
2. A democratic form of government.
3. A demarcation of powers between the executive, the legislature and the judiciary. This is known as the doctrine of the separation of powers.
4. An independent judiciary, to be able to enforce the fundamental rights against the State in favour of aggrieved individuals.
5. Entrenched human and fundamental rights to be enjoyed by individuals.
6. Any individual whose human and fundamental rights have been contravened, or are being contravened, or are likely to be contravened by any arm of the State has a right to apply to the judiciary to get redress against the State.
In exercising its jurisdiction under Section 14 of the constitution, the judiciary is given a wide jurisdiction to declare any action of the executive, Parliament, or even the judiciary, to be unconstitutional and to award monetary compensation for any such violations. The power of the court to grant redress includes the power to declare an Act of Parliament unconstitutional and to declare any action of the judiciary unconstitutional. Section 13 of the constitution gives to the judiciary the power to even declare unconstitutional a law passed by the Parliament with a special three-fifths majority.
The court can declare such a law to be unconstitutional if it finds that it is not reasonably justifiable in our society, having regard to the need to have proper respect for the human rights and freedoms entrenched in the Constitution. It would be readily seen that in order for the judiciary to perform its functions as the guardian of the constitution and the rights of the people, the judges must be protected from executive pressure or interference. This is recognised as an essential feature of the rule of law. Constitutionalism cannot thrive without observance of the rule of law, and democracy cannot exist without the rule of law.
The Universal Declaration of Human Rights states: "It is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." The rule of law and the doctrine of the separation of powers require the judiciary to be free from the interference and influence of the Government, in order for it to discharge its duties to make the Government account to the law. If the judges are made beholden unto the Government, they are not likely to give decisions against the Government, because of the pressures and interference by the Government on the independence of judges.
In my previous articles, I showed that the proposals in the draft constitution would permit a minister of government to exercise administrative functions of the judiciary. The Government would be able to use its majority in Parliament to create new courts to take away the jurisdiction of the judges of the Supreme Court. The judiciary would have to function in an environment in which the Government would have control over the administrative powers of the judiciary. This environment is likely to adversely affect the independence and impartiality of the judges, and can make the judiciary compliant to the wishes of the Government. An important function of the court is for the court to make the Government account to the courts in respect of the observance of the law.
If the courts are controlled by the Government, the courts would not be able to perform that role with courage and fearlessness. It is appropriate to refer to the words of Lord Bingham in the Privy Council in the case of Independent Jamaica Council for Human Rights (1998) Ltd v Marshall–Burnett (2005) 2AC 356 at paragraph 12: "Independence of the judges (or, put negatively, the protection of judges from executive pressure or interference) is all but universally recognised as a necessary feature of the rule of law." In that case, there was a challenge to the constitutionality of the instruments which provided for the appointment of the Chief Justice and judges of the Caribbean Court of Justice.
The main ground of the challenge was that the instruments establishing the court did not protect the judges from executive pressure or interference, and constituted a threat to the independence of the judiciary, and violated the doctrine of the rule of law. The provisions of the draft constitution would also put executive pressure on the judges of the Supreme Court, and would interfere with their independence. The Executive President of Guyana had similar powers of the Executive President under the draft constitution, and within a short space of time the judiciary in Guyana was regarded as a government tool to carry out the wishes of the Executive President. President Burnham of Guyana abolished appeals to the Privy Council, and he used his executive powers to interfere with the independence of the judiciary.
He appointed judges based on their support for his political party. Most of the judges became the tool of President Burnham. The comments made by the Chief Justice, the Hon Ivor Archie, during the last opening of the law term, on the threat by the draft constitution to the independence of the judiciary should, therefore, not be taken lightly. The proposals in the draft constitution would make the right of redress from the Supreme Court for breaches of fundamental rights by the Government meaningless, if the courts are not independent and impartial, or if the courts become the tool of the Government. The rule of law, therefore, would not be able to be enjoyed if the draft constitution becomes law.
The provisions in the draft constitution may give to some a cosmetic appearance that democracy and the rule of law would be enjoyed. In examining the draft constitution, we cannot look only at its form; we have to look at its structure and framework. Its form may give a cosmetic appearance that democracy is safe, but in examining the structure, its framework and the vast amount of State power given to the executive president for him to exercise over all arms of the State, clearly show that the rule of law cannot be enjoyed under such a constitution.
The Judicial Committee of the Privy Council, in the case of the State of Mauritius v Khoyratty (2007) 1AC 80 at paragraph 12 decided:
"The idea of a democracy involves a number of different concepts. The first is that the people must decide who should govern them.
"Secondly, there is the principle that fundamental rights should be protected by an impartial and independent judiciary. "Thirdly, in order to achieve a reconciliation between the inevitable tensions between these ideas, a separation of powers between the legislature, the executive and the judiciary is necessary."
Constitutionalism is not determined by merely looking at the words of a constitution or its form. There is need to look at the substance of the matter. The doctrine of the separation of powers and the rule of law are at the heart and soul of constitutionalism.
These principles are so vital and important for the existence of constitutionalism, that courts have decided that where the basic structure or framework of a democratic constitution is to be altered, Parliament does not have the power to alter such basic structure or framework.
One such case was decided by the Supreme Court of India. That was the case of Bharati v The State of Kerala (AIR) (1973) SC 1461. The Supreme Court of India detailed six basic elements of the Constitution of India. Those six basic elements are similar to the basic elements which I mentioned above, and which form the pillars of the existing Constitution of Trinidad and Tobago. The Supreme Court of India held that Parliament could not alter the basic structure or framework of the Constitution of India.
Ramesh Lawrence Maharaj, SC Attorney-at-law
President of the Trinidad and Tobago Civil Rights Association