Conditions of Service of the Judiciary
Once appointed, even judges chosen for their perceived sympathies may rise to the occasion and eschew partisan rulings. Such independence, however, is possible only where a Judge’s tenure is secure, and Commonwealth Caribbean constitutions contain various safeguards to promote this objective.
Thus, appointment to the higher judiciary (once confirmed, of course) is a lifetime one, relinquished in the normal course only upon attaining a specific retirement age.[852] The office itself is protected, in the sense that it cannot be abolished while it has a substantive holder.[853] Most crucially, judges’ salaries are charged on the Consolidated Fund[854] and cannot be reduced to their disadvantage while in office.[855] This means, as it has been colourfully put elsewhere, that judges are not reduced to the position of mendicants dependent on executive largesse.A. Post Retirement Extensions
Specific conditions are laid down for extending a judge’s tenure following the attainment of retirement age - invariably dictated, as in The Bahamas Constitution, to be for such period �as may be necessary to enable him to deliver judgment or to do anything in relation to proceedings’ already underway.[856] Thus the omission to specify a fixed period as in other constitutions[857] would not necessarily sanction open- ended extensions, as these are mandated only for a stated objective. An extension in office for whatever period entitles the office-holder to perform all the functions of the office, so it is a substantive and significant facility. For this reason, the Privy Council has held in relation to Trinidad and Tobago that extensions beyond the specified three-month period should not be entertained.[858]
B. Premature Termination of Tenure
Premature termination is possible only in specific situations — invariably being the �inability to discharge the functions of [the] office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour,’[859] and only after a clearly detailed procedure is followed.
For most of the countries of the Commonwealth Caribbean with the notable exceptions being Guyana and Belize, this procedure requires the ultimate sanction of the Privy Council, and it involves a three-tiered process involving (i) initiation by the Prime Minister or the Chief Justice, depending on who is being investigated; (ii) the appointment of a tribunal to investigate the question of removal and to advise the Governor General whether or not to refer it to the Privy Council; and (iii) consideration of the matter by the Privy Council, whose advice is to be followed by the Head of State.[860] Finally, these safeguards all enjoy varying degrees of entrenchment in the constitutions, meaning that special parliamentary majorities are required for amendment.The success of these provisions in ensuring an inviolable judiciary possibly rests on two critical conditions — one being their entrenchment in the constitutions, which means that a significant degree of political consensus is required in order to effect any changes, and the second being the retention of ultimate control by the Privy Council. Still, despite these safeguards judges have not been entirely immune from interference, and constant upheavals within the Trinidad and Tobago judiciary illustrate the potential for both executive and administrative abuse.
In Rees v Crane,31 the respondent, the most senior puisne judge in the country, had been simply left off the roster of sittings for the upcoming term by the Chief Justice, following which the latter initiated the removal process by asking the Judicial and Legal Services Commission (JLSC) to consider whether they would recommend to the President to set up a tribunal to investigate the question of the respondent’s removal. The JLSC did not give the respondent an opportunity to rebut the complaints before making the recommendation to the President, who duly established the tribunal and suspended the respondent. The respondent sought judicial review of the decisions of the Chief Justice and the JLSC, contending that they were ultra vires because he was not given an opportunity to make representations before they were made.
The Privy Council agreed with the Court of Appeal that there had been a breach of natural justice and prohibited the tribunal from proceeding with the inquiry. The Board held that the respondent ought to have been given the opportunity to reply to the charges before the representation was made to the President even though this was only the first stage of the removal process. Such an opportunity was required, they felt, because of the enormity of the proceedings, the seriousness of the charges against the respondent, including misbehaviour, the publicity surrounding both his suspension and the appointment of the tribunal of inquiry, and the damage to his reputation and position as a judge. The Privy Council also quashed the decision of the Chief Justice not to schedule the respondent on the roster for the following term, holding that this amounted to a de facto suspension. Their Lordships held that ifjudicial independence were to mean anything, then suspension and termination of judicial officers had to follow the strict letter of the law.
Rees v Crane is a classic example of the vulnerability of judges to administrative interference, despite all the protections itemized in the [861] constitutions. As the head of the judiciary, Chief Justices are highly influential, in that they are in charge of the administration of the courts, they assign cases and they help to determine new appointees by virtue of sitting on the judicial (and legal) services commission. Such power helps to explain in turn why governments in the region have tried to influence the appointment to this office, for by controlling its incumbent governments can indirectly control the entire judiciary — not by insisting that judges must rule a certain way, but through the assignment of duties which may well determine the outcome of a case. Moreover, a chiefjustice aligned to the executive is a critical ally on the service commission, this being the body that chooses new appointees to the bench.
An example of executive machinations occurred more recently in Trinidad and Tobago in relation to the conduct of criminal proceedings brought against the Chief Justice, with the entire episode providing a perfect illustration of the lengths to which some governments are prepared to go in order to control the judiciary.
In Sharma v Browne-Antoine,[862] the Chief Magistrate alleged that the Chief Justice had tried to influence a case involving former Prime Minister Basdeo Panday. Facing imminent prosecution on a charge of attempting to pervert the course of public justice, the Chief Justice obtained leave to seek judicial review of an alleged decision to prosecute him by the Deputy Director of Public Prosecutions. Later, the trial judge made similar orders against the Assistant Commissioner of Police, restraining all of the respondents from taking steps to prosecute the Chief Justice. The trial judge refused an application by the respondents to set aside the leave, whereupon they appealed successfully to the Court of Appeal. Although the Privy Council dismissed an appeal by the Chief Justice on the ground that the trial judge had misdirected herself on the appropriate standard to be applied, in the account of the events detailed by their Lordships one can discern the influences that were at work behind the scenes.
A considerable period of time had elapsed between the first voicing of any complaint by the Chief Magistrate and the making of his statement, which in the context of criminal proceedings is a factor that impacts significantly on credibility. There was some suggestion that the Chief Magistrate had been implicated in a property transaction, from which he was extricated by the Attorney General, another factor which the Chief Justice held out as compromising the integrity of the Chief Magistrate and giving him a motive to lie. However, even though the state had gathered considerable evidence relating to this transaction (some 20 statements or thereabouts), none was disclosed at any stage.
Instead, information about the case was leaked by the government to the press, no doubt to prejudice the Chief Justice in advance of the proceedings. Uncontradicted evidence was led that prior to the laying of any charges both the Attorney General and the Prime Minister had urged the Chief Justice to resign on at least three separate occasions, a prejudgment of the issue that the Prime Minister either in his naivete or plain contempt for the presumption of innocence (not to mention the separation of powers) actually repeated in Parliament.[863]By the time the police were ready to lay charges, they obtained an arrest warrant which they attempted to execute at the home of the Chief Justice on a Friday at 5:00 p.m. Apparently some eight police cars turned up for the occasion, and though the Chief Justice was able to secure the intervention of his legal adviser and was not in the end taken away in handcuffs, this vulgar display of force — at the start of the weekend when arrested persons in the normal course would have to be detained until Monday morning — could only have been intended to intimidate the Chief Justice and secure his resignation, earlier solicited by the Prime Minister and his chief legal adviser in private meetings.
Irrespective of the merits of the allegations — the credibility of which is questionable given that the local committee dismissed the case to remove the Chief Justice and the matter never reached the Privy Council - what is particularly disturbing about this attempted removal were all the irregularities in the processes, both official and unofficial. While it may be difficult to come to any conclusions about motivations merely from the reported facts of a case, these events, particularly in the context of heterogeneous and politically polarized societies like Guyana and Trinidad and Tobago, highlight once again the inadequacies of the explicit constitutional provisions by themselves, however detailed they may be. In the absence of a mature political climate, resort to implicit constitutional norms (which reflect underlying values) could well provide a way for keeping governments in check and preventing the manipulation or other abuse of the actual text by an overreaching executive.
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