In my last article I discussed some lessons to be learned from the enacting, proclaiming and repealing of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011. There are other issues which this incident has brought to the fore and which are of great importance for future constitutional amendments and for good governance.

Mr Herbert Volney has had his portfolio as minister removed for apparently telling the Cabinet that he had consulted the Chief Justice and the Director of Public Prosecutions on the proclamation of certain sections of the Administration of Justice (Indictable Proceedings) Act 2011.

This raises in my mind the general issue of consultations between the Government and the Chief Justice in the light of the separation of powers. As a lay person in the law I shall record some points that concern me but I shall be grateful for some help from our legal luminaries.

The Executive and the Judiciary must meet on the issue of infrastructure needed for the courts to carry out their responsibilities: buildings and other facilities, professional level staff—number of judges and magistrates, support staff and all the recurrent costs needed for efficient operations of the courts.

How this is to be achieved while maintaining the independence of the courts is a matter of much concern when constitutional matters are being discussed.

The creation of a Ministry of Justice may on the one hand be viewed as a development to assist in ensuring that the infrastructure for the administration of justice is well in place. On the other hand it may be viewed as an incursion by the executive into the affairs of the Judiciary.

An alternative (which no doubt existed to some extent in this country until recently that is, before the creation of the Ministry of Justice) is to provide the Judiciary with the where-with-all to completely manage all its affairs including providing the infrastructure.

Thus the Judiciary would be given the financial resources (allocated in the budget) directly from the Ministry of Finance.

In an ideal situation the national Judiciary could operate like the Caribbean Court of Justice (CCJ) which has a capital fund the interest from which runs the court. The CCJ is thus completely insulated from any political control which might be exercised through the financial allocations.

Thus, as I stated earlier, the Executive and the Judiciary may need to meet on the issue of infrastructure. On the other hand it would be most inappropriate for the Executive and the Judiciary to meet to discuss the merits or demerits of particular laws passed by Parliament since matters may come before the Judiciary to do with the application and/or interpretation of such laws.

What of the case where a law that has been passed by Parliament but not yet proclaimed? It seems to me that this is a grey area and I would be very interested to have the opinions of legal experts on that issue.

What then of the much discussed Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011?

There were two important points made in the Prime Minister's statement on the issue of the early proclamation of Section 34. The first is that Volney misled Cabinet into believing that he had consulted the Chief Justice (and the Director of Public Prosecutions) on this matter.

Suppose he had consulted with the Chief Justice what would have been the nature of that consultation? It could not have been to enquire whether there would have been any unexpected legal consequences of early proclamation that would have brought matters before the courts. That would have been inappropriate. So presumable the enquiry might have been whether any undue burden would be placed on the courts by early proclamation of Section 34.

Suppose the Chief Justice had said: the courts can handle early proclamation of Section 34. It must be remembered that this was not proclamation of the whole Act which would have required many other infrastructural matters to be in place.

If the Chief Justice had responded in that manner presumably Cabinet would have gone ahead with proclamation. When the unintended (there being no evidence to the contrary) consequences of such a proclamation became evident would not the Cabinet have been responsible?

Could the Prime Minister have argued that the Chief Justice gave the all clear and so the Cabinet is exonerated? Accepting that the consequences of the decision were unintended must the conclusion be made that members of Cabinet were negligent in not studying carefully the issues and therefore not appreciating the significance of early proclamation of Section 34?

While the Prime Minister dealt with the matter of Volney's information to Cabinet she still has not given a satisfactory explanation of the need for early proclamation of Section 34.

The Cabinet had the benefit of the advice of the many lawyers present and of the Attorney General (Senior Counsel) who constitutionally is responsible for the administration of legal affairs. Even if he were absent from the first meeting at which the decision was taken no Cabinet decision is implemented until the minutes are confirmed at the next meeting and one presumes that he was present at that latter meeting.

Major factors in Cabinet decisions are the large number of matters that go to Cabinet and the large size of Cabinet. Until these issues are dealt with there will always be the risk that important matters may not get the attention they need. The Cabinet should not exceed 15 and ministers should be given the responsibility to deal with routine matters so that they need not be brought to Cabinet.

In any event the consequences of early proclamation of Section 34 will cost the State (the people of Trinidad and Tobago) millions of dollars since the likelihood is that the cases of application for relief under that Section before it was repealed will go eventually to the Privy Council.

—John Spence is professor emeritus, UWI. He also served as an independent senator