DR HAMID GHANY

hamid.ghany@sta.uwi.edu

The Mis­cel­la­neous Pro­vi­sions (Age of Re­tire­ment of Judges, In­ter­pre­ta­tion and Chief Ju­di­cial Of­fi­cers) Bill 2019 was passed in the House of Rep­re­sen­ta­tives on March 4 in­stant has now been sent to the Sen­ate.

The de­ci­sion of the Gov­ern­ment to ar­bi­trar­i­ly in­crease the re­tire­ment age for judges with­out re­course to any opin­ion from the Salaries Re­view Com­mis­sion (SRC) is dis­turb­ing. The bill makes the fol­low­ing pro­vi­sions:

"3A. The age at which a judge is re­quired to va­cate his of­fice un­der sec­tion 136(1) of the Con­sti­tu­tion is sev­en­ty years."

The use of the word "re­quired" sug­gests a manda­to­ry in­stead of an op­tion­al de­ci­sion to re­tire at sev­en­ty years which is an in­crease from the ex­ist­ing re­tire­ment age of six­ty-five years.

Ac­cord­ing to sec­tion 141 of the Con­sti­tu­tion:

"141.(1) The Salaries Re­view Com­mis­sion shall from time to time with the ap­proval of the Pres­i­dent re­view the salaries and oth­er con­di­tions of ser­vice of the Pres­i­dent, the hold­ers of of­fices re­ferred to in sec­tion 136(12) to (15), Mem­bers of Par­lia­ment, in­clud­ing Min­is­ters of Gov­ern­ment and Par­lia­men­tary Sec­re­taries, and the hold­ers of such oth­er of­fices as may be pre­scribed."

Un­der the Con­sti­tu­tion, judges are in­clud­ed in sec­tion 136(13) of the Con­sti­tu­tion. This means that this leg­is­la­tion has a fun­da­men­tal flaw in it be­cause it does not dis­close that (i) the Pres­i­dent has been di­rect­ed by the Cab­i­net to ap­prove a re­view of the "salaries and oth­er con­di­tions of ser­vice" of judges by the SRC, and (ii) that such a re­view has been con­sid­ered and re­port­ed up­on by the SRC.

With­out any such pro­ce­dur­al and con­sti­tu­tion­al re­quire­ments hav­ing been sat­is­fied, it would be po­ten­tial­ly un­con­sti­tu­tion­al for the Leg­is­la­ture, at the be­hest of the Ex­ec­u­tive, to al­ter the terms and con­di­tions of ser­vice of judges in this way.

It would be best for the Gov­ern­ment to hold its hand on this amend­ment be­cause it might be seen as the Gov­ern­ment seek­ing to cur­ry favour with the Ju­di­cia­ry by em­bark­ing up­on these changes with­out the in­put or rec­om­men­da­tion of the SRC.

One of the in­no­va­tions in­clud­ed in the 1976 Con­sti­tu­tion was the cre­ation of the SRC as a buffer against any gov­ern­ment tak­ing it up­on it­self to pro­pose the al­ter­ation of terms and con­di­tions of ser­vice for a range of of­fices.

The Re­port of the Joint Se­lect Com­mit­tee dat­ed Feb­ru­ary 18, 1976, for the re­pub­li­can con­sti­tu­tion stat­ed the fol­low­ing in re­la­tion to the cre­ation of an SRC:

"Your Com­mit­tee con­sid­ered the pro­pos­al that a per­ma­nent im­par­tial and in­de­pen­dent Salaries Re­view Com­mis­sion be set up to ad­vise the Prime Min­is­ter on the re­mu­ner­a­tion of per­sons in re­ceipt of emol­u­ments from the con­sol­i­dat­ed fund and such oth­ers as the Pres­i­dent may re­fer to it from time to time. Your Com­mit­tee agreed with this pro­pos­al and rec­om­mend that it should be en­shrined in the Con­sti­tu­tion." (p 15).

When this re­port was tabled for de­bate in the House of Rep­re­sen­ta­tives on March 5, 1976, the Prime Min­is­ter, Dr Er­ic Williams, had this to say on the SRC:

"We are sat­is­fied in the Cab­i­net too with the pro­vi­sion made for the Salaries Re­view Com­mis­sion to avoid the un­for­tu­nate po­si­tion that Mem­bers of Par­lia­ment gen­er­al­ly find them­selves in, hav­ing to pass on their own salaries or hav­ing to be sub­ject­ed to groups that with the best will in the world might tend to be­come pres­sure groups in terms of their own par­tic­u­lar emol­u­ments." (Hansard, House of Rep­re­sen­ta­tives, Vol 19, No 17, p666).

When the Con­sti­tu­tion (Re­pub­lic) Bill 1976 came to the House of Rep­re­sen­ta­tives for de­bate on March 12, 1976, Dr Williams ex­pressed the fol­low­ing view on the cre­ation of the Salaries Re­view Com­mis­sion as fol­lows:

"On the Salaries Re­view Com­mis­sion—we be­lieve it is valu­able. The best thing that can be done is to avoid the dif­fi­cul­ty of ne­go­ti­at­ing with a lot of peo­ple where one will want to main­tain a re­spect­ed and re­spectable dis­tance with­out the bit­ter­ness that is nor­mal­ly as­so­ci­at­ed with wage and salary ne­go­ti­a­tions." (Hansard, House of Rep­re­sen­ta­tives, Vol 19, No 18, pp 733-734).

The in­ten­tion was that the SRC should be­come a buffer be­tween the Ex­ec­u­tive and Par­lia­ment, on the one hand, and the hold­ers of spe­cial of­fices, on the oth­er hand. Those spe­cial of­fices in­clude judges and this bill should be halt­ed un­til the Cab­i­net has re­ferred the re­tire­ment age of judges to the Pres­i­dent for the prop­er con­sid­er­a­tion of the SRC.