Government's proposed draft Constitution reform received a severe pounding yesterday, as Chief Justice Ivor Archie addressed the law fraternity at the opening of the law term.
Delivering the feature address in the Convocation Hall of the Hall of Justice in Port of Spain, Justice Archie said: "What is troublesome about the current draft Constitution is that, in this regard, it represents a reversal of the progress we have been making over the past two decades and a departure from internationally accepted norms ..."
In delivering his 50-minute speech, Justice Archie said the separation of powers and judicial independence is of great importance and the independent administration of judiciary proceedings was of paramount importance.
Noting that the office of the Chief Justice "carries with it the responsibility to speak out on occasion in order to contribute balance and mature perspective to debate on matters of national interest, particularly when they impact upon the judiciary and the administration of justice generally", he said effective court administration provided the judiciary with the necessary device to protect judicial independence.
"Effective and independent court administration promotes public accountability and public trust and confidence," Justice Archie said.
He then alluded to some of the provisions embedded in the draft Constitution which refer to the judiciary. Certain objectives brought to the forefront, if implemented, he said, would be a step backwards.
"In my respectful view, they stem from a fundamental misunderstanding of our role and function and have disturbing implications for judicial independence. I refer in particular to clauses 121 to 125, 136 and 142," Justice Archie said.
"The misunderstanding lies in the assumption of a false dichotomy between the judiciary's judicial and administrative functions and the assumption that one can be independently exercised without the other. The danger lies in the potential to gradually and systematically strip the judiciary of its independence and the citizens of their protection through ordinary or subordinate legislation requiring no special majority."
Saying the old adage "if it ain't broke, don't fix it" should apply and precautionary measures should be taken to avoid removing proper independent administration of the judiciary from within the judiciary, he expressed concern over the possibility the draft Constitution could be implemented in its current form. He said if this were to occur, then "power can be simply and unceremoniously stripped away" as a Minister of Justice would have ultimate power over the judiciary.
"Given our political realities and the way in which its composition would be determined, the fact that the House of Representatives must approve these appointments hardly provides a convincing check, or at least one that is likely to foster public confidence in the independence of the judiciary," Justice Archie said.
Pointing out the "most worrisome clause" is 125, which gives Parliament the power to confer on any court any part of the jurisdiction and powers conferred on the High Court by the Constitution or any other law, Justice Archie said such moves required no special majority, "nor does it require that the new court or courts enjoy the constitutional protections designed to ensure the independence of the Supreme Court".
Declaring that the most important power of the Supreme Court is its separation of powers, he lamented such separation is "the only protection that citizens have against arbitrary or unlawful state action".
Speaking to reporters following Justice Archie's speech and his concern on the proposed draft Attorney General John Jeremie, when probed about the remarks, said: "It is good food for thought."