Don’t Politicise the Judiciary, Warn Trinidad & Tobago Jurists

The Hall of Justice in Port of Spain, Trinidad. Photo by Klaas Vermaas, CC BY-ND 2.0.

The narrative surrounding the chief justice controversy in Trinidad and Tobago is shifting, moving from heated debate about accountability to concerns about the politicisation of the judiciary.

The Law Association of Trinidad and Tobago (LATT) passed a no confidence vote against Chief Justice Ivor Archie after the Judicial and Legal Service Commission (JLSC) — which he chairs — mismanaged the appointment of Marcia Ayers-Caesar to the High Court. Ayers-Caesar had left behind a heavy unfinished case load, which has compromised the ability of scores of prisoners to get justice within a reasonable period of time. She thereafter resigned.

As far as the JLSC seems to be concerned, it has dealt with the matter, and planned to return to business as usual with the appointment of two new judges this week — but this was blocked by the granting of an interim injunction on the night of June 5, 2017. The injunction was brought by former attorney general Anand Ramlogan on behalf of former agriculture minister Devant Maharaj, who are both members of the United National Congress (UNC), a political party which sits in opposition in parliament. It requested that no judicial appointments take place until after the hearing of a case which argues that no more than one retired judge can sit on the JLSC. The body currently comprises two former judges.

Political commentator Rhoda Bharath, whose determination to get answers from the President Anthony Carmona about his receipt of a controversial housing allowance has resulted in a police investigation, noted:

When Carmona exercised a power he didn't have, and helped himself to housing allowance he wasn't entitled to Devant Maharaj, Anand Ramlogan and Gerald Ramdeen were silent.
Now that Carmona exercised a power he does have – to appoint the JLSC and judges – they challenge it in court.
Curiouser and Curiouser

The ruling which was made on the injunction was subsequently overturned by the Court of Appeal.

Making the point that Trinidad and Tobago has a history of “a stable and independent judiciary”, attorney Justin Phelps — a member of the governing People's National Movement party and one of the voices (among them a former chief justice) calling for Archie to stay in place — noted in an interview that “it is unhelpful to allude that [certain lawyers] are advancing a political agenda”.

Saying that the lawyers who brought the injunction may be coming from the position “that there needs to be a lot more discourse between the bench, the judiciary and the legal profession”, he did concede that the case is interesting, because it sought to block two new judges with “formidable experience” from taking up their judicial functions — a move he called “counterintuitive to anybody who has an interest in the administration of justice”. The two new judges were sworn in on June 7.

Phelps likened the whole affair to democracy under attack — and he wasn't the only one. Barrister Dr. Emir Crowne agreed that judicial independence was under siege, quite ironically “by the very bar that prides itself on independence and self-governance”. Quite bluntly, he explained:

Judicial independence essentially means that judges and other judicial officers are free to exercise the functions of their office without fear of reprisal, retribution or termination. The elements of such independence are security of tenure, financial security and administrative independence. Each of these elements is essential to ensure that democracy itself functions without undue influence from the State, unsuccessful litigants and third parties—like a select group of lawyers. […]

As members of the legal profession, you cannot tout the importance of an independent judiciary while at the same time passing motions for the removal of judges. It is an affront to the very principles that a self-regulated bar—in a democracy no less—is supposed to stand for.

Maria Rivas Mc, one social media user who has been paying attention, summed it up this way:

The current situation appears to becoming increasingly politicized. After all the yammering of lawyers, I'd like to see evidence of concrete policy changes and processes. It's an opportunity to do things better and plug gaps. Admittedly the crisis snowballed and was improperly handled at the start but, from where I sit, it now appears to be about settling vendettas and scoring points. We should be getting consensus on how to treat with those persons (including victims) who've been waiting years for justice. Esoteric arguments are important to agree on the philosophy and the way forward, but we also have real issues to sort out. Let's not do it all in the public sphere, amidst all the hype. The country needs to have confidence in all its public institutions.

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