revealing, inappropriate, crucial. Whatever your reaction to Chief Justice
Michael de la Bastide’s 52-page speech, where he warned that the
independence of the Judiciary and his own office was under serious threat,
it was, in the end, democratising.
may have created another of our seven-day bacchanals: a flurry of
speculation, gut responses based on allegiances to the main players,
hearsay and a little knowledge. But it took what could have remained as an
ivory tower struggle between two men holding the powerful offices of Chief
Justice and Attorney General and gave it back to the people. It got us
asking questions. Is the independence of our Judiciary under threat? Does
it follow that as a people our fundamental freedoms and rights are being
eroded? Or is it a clash of power between two personalities holding high
official response to these questions from the Attorney General’s office
was that the AG, Ramesh Lawrence Maharaj, now abroad, “is in the process
of preparing a response to every allegation made by the CJ”. But a
high-level source from the AG’s office responds to the CJ’s speech.
From the Chief Justice’s office I spoke to one of this country’s
highest judicial sources. Given the potentially volatile nature of this
debate, both wished to remain anonymous. Both parties agree that the
issues of the Chancellor and the new rules for the Judiciary are not part
of the immediate impasse between the AG and the CJ. The stand-off between
the two is a commonplace public service procedure:
the Cabinet note.
present system which obtains throughout the English-speaking Caribbean is
that, in theory, the CJ’s Cabinet notes go via the AG directly to
Cabinet unchanged. In reality, the two offices discuss the notes
informally before they are presented to Cabinet. The AG has allegedly
proposed that as the minister of government responsible to Cabinet on all
legal and judicial affairs, he should approve the CJ’s Cabinet notes.
The AG’s implicit position is that recommendations made, or money
dispersed in his name, should have his approval to ensure accountability.
CJ’s position, stated in over 52 pages, say once “such a regime is
introduced, judicial independence has been severely compromised.”
Reginald Armour, a prominent attorney-at-law and former temporary judge,
says “the only way to approach the CJ’s speech is for us to discuss
the issues that arise out of the speech, and not the personalities
involved. The real issue is that of the constitutional framework for the
relationship between the office of the CJ and that of the AG against the
background of the independence of the Judiciary.
we as a people, citizens and lawyers, have to agitate for now is a
structured debate in a public forum - informed by facts.”
question now is, in the wake of the CJ’s explosive speech, who will
ensure the debate will not deteriorate into fodder for partisan groups or
vapourise into nothingness by ambitious and/or spineless attorneys who
want to be on the right side of these powerful men? Who will arbitrate the
There is a distinction between fact and rhetoric. People are confusing
separate issues including the new rules of court, the appointment of a
Chancellor, the relationship between CJ and AG to suit themselves, and
often without any basis in fact.
If the personalities in question were different (not as strong as they
are), a lot of this could be resolved quietly. Most of the Chief
Justice’s concerns regarding the Judiciary could have been worked out
without being brought into the open. In fact, the two men have discussed
most of the issues raised by the CJ behind closed doors.
Nowhere is the AG getting more personal power. The Constitutional
Amendment Bill gives parliamentary committees the power to demand
accountability. The proposal for an administrative Chancellor came
independently from the president of the Law Association. The CJ’s speech
was more of a personal vendetta against the AG: a bid to grab
unprecedented power, couched in concern for the independence of the
The AG, by law, represents legislative and legal matters to Cabinet. Like
every minister of government he has to approve Cabinet notes.
The CJ wants more power. He has a problem being considered on par or below
the minister in terms of budgetary allocations. The CJ wants full control
of the Judiciary’s finances, and feels he should not have to go through
the AG to send a Cabinet note. There is no precedent for that. Even the
Prime Minister and President have to go to Cabinet for allocations. If the
Judiciary stopped going through Cabinet for budgetary allocations you will
still face the problems of accountability in the CJ’s office, which is
made up only of people in the Legal and Judicial Commission of which he is
Many judges are longing to become senior counsel - the AG and CJ determine
their fate so they obviously want to be careful. Even senior counsels are
in line to one day become Chief Justice or Attorney General so they are
keen to appear neutral in this debate.
Most of the CJ’s speech took the form of a personal attack against the
AG, which was in bad form in a public forum. There are fundamental
differences in the way they see things, but most of the CJ’s allegations
have no basis in fact. Most of this is documented but that battle will be
dealt with in due course.
This government is committed to both judicial independence and
The CJ has no problem with people opposing him tooth and nail on the issue
of the appointment of the chancellor. What he is concerned about is the
use of the Cabinet note to control the Judiciary.
While the issues of the Chancellor and the new rules are out in the open
and can be debated, the issue of increased power for the AG is not. If
“they” think the AG should have new powers of veto over expenditure
for judges’ appointments and salaries, perks and holidays (which has
happened by interpreting Cabinet notes in a new way) and, ultimately, the
running of the Judiciary, they should say so.
Once increased power is granted to the AG’s office, every AG (now and in
the future) is not likely to relinquish it.
Under the Constitution, there is nothing that provides for the AG having a
ministry. The Constitution names the Prime Minister and the Attorney
General as the two mandatory members of government around whom the rest of
the Executive is formed. Traditionally, the AG is the conduit between the
Judiciary and the government. His constitutional role is to advise the
government, not to oversee the Judiciary.
In the past, the AG served as a conduit between the CJ and Cabinet. Now
the AG says, in effect, to the Chief Justice, “You have to report to me.
I have the power, delegated from Cabinet, to decide on appointments,
training, perks, salaries.” Whether judges give way to political
pressures is not the point. The point is: they should be put in a position
where these pressures don’t exist. Lawyers are notably spineless and
don’t want to offend either the Chief Justice or the Attorney General,
so they are not getting involved. I may not agree with Israel Khan but, at
least, he has the courage to say something. I would like anyone interested
in democracy to answer whether they think these powers should be vested in
the AG. This has nothing to
do with personalities and parliamentary committees. The Judiciary’s
administrative independence is accepted throughout the Commonwealth and in
many other parts of the world.