Wednesday, January 17, 2018

Salaries and pensions postscript

Martin Daly logo56

Mark Fraser

This is a postscript to the Prime Minister’s decision to pause on ploughing through with the two bills dealing with enhanced provisions for judges and parliamentarians.

“Politics” has a bad name partly on account of the distortion and spin put on everything in order to further the partisan agenda of political parties, yet the politicians do not realise that the distortion and spin make them unattractive recipients for enhanced terms and conditions of service.

The current enhancement bills deserve a greater look than fleeting glimpses in the dead of night. Mind you, the use of a Senate Select Committee is at best political pragmatism because the collision with the Constitution remains an issue except in relation to the retired judges.

At the outset Reggie Dumas and I strongly advocated that the urgent needs of retirees should be addressed. It seems settled that once a judge has retired from the Bench his or her pension terms and conditions fall outside of the process of the Salaries Review Commission (SRC).

Accordingly, legislation to improve the terms and conditions of judges who have already retired and have fallen on hard times, either because of the effects of cost of living or serious illness, can be properly passed. Such legislation should be custom-designed, containing, as Dumas and I suggested, interim or remedial measures, and passed quite separately from the terms and conditions of sitting judges.

However, many citizens recognise that the politicians are hiding their own bonanza behind the plight of the retired judges.

The SRC procedure set out in the Constitution is a prior review process. It first requires that the salaries and other conditions of service be reviewed from time to time with the approval of the President. Once the review is completed the SRC is required to submit a report to the President. The President in turn must submit a copy of the report to the Prime Minister for presentation to the Cabinet and for laying, as soon as possible thereafter, on the table of each House.

The process set out above is a constitutional provision. The practice has been that SRC reports are debated by Parliament and the SRC recommendations may be accepted, rejected or varied as has happened on previous occasions. It is a new situation to have no input from the SRC before the Parliament treats with the matters.

Readers will see at once that the SRC recommendations are not binding but it is a dangerous fallacy to say that the SRC constitutional process may be bypassed because the recommendations are not binding.

There are several constitutional provisions that are also not binding.

The best examples are those provisions requiring the President to consult with persons such as the Prime Minister and the Leader of the Opposition before making critical appointments.

The outcome of the consultation is not binding, but I am quite sure there would be an uproar, if, for example, the President bypassed the Leader of the Opposition when making an appointment, on the grounds that he did not have to consult because the consultation requirements are not binding.

It is obvious that the recommendation and consultation provisions were placed in the Constitution to provide a basis for independent guidance or informed decision-making by the President or the Parliament as the case may be. Wilful disregard of those provisions will attract the taint of constitutional impropriety. I have used the latter phrase advisedly and the Courts may have to provide the answer.

It remains my position that the constitutional process of review must be observed in respect of sitting judges and parliamentarians and given no less respect than the consultation provisions to which I have referred.

The need for such respect is underlined by the fact that the Constitution is expressly stated to be “the supreme law of Trinidad and Tobago”. It is less than diligent governance to have omitted to stimulate or, if necessary,to have reformed the review mechanism if it were proving recalcitrant.

Whether the Office of the President or the SRC likes it or not, as those charged with approving a review and reviewing salaries and other terms and conditions from time to time, there has been slothfulness.

The relevant parties should be proactive in chasing up whatever approvals and funds are required for the salary review process to work. Anything less is calculated to produce another institutional failure.

A final postscript on this disturbing matter is the suggestion now in the public domain that these salaries and pensions bills were drafted outside of the normal parliamentary drafting process. We need assurances that special interests did not drive the drafting process.

Public trust has been further undermined. Outbursts of partisan, political anger and the usual tactics of intimidation and smear, when members of civil society raise constructive criticism, will not regain that trust; nor will those tactics silence those of us not paralysed by indifference and buy out.