In his address at the opening of the Law Term, Chief Justice Ivor Archie delivered a masterful dissertation on judicial independence and the rule of law. He ’spoke truth to power’ in terms that one might call ’deferential dissent’. Archie told all and sundry to ’listen carefully’ to what he had to say; many did so, indicating that they shared his fears and concerns.

Archie’s address was much less aggressive than that made by former CJ Michael de La Bastide who, in a similar address in 1999, challenged the then Attorney General, Ramesh Lawrence Maharaj, to a political rumble in a public arena if the latter continued to attack the principle of judicial independence to which he was committed. The then CJ told the then AG that his demands were ’out of place and ultra vires’. The dramatis personae are now different. The issues are however the same as they were 10 years ago, part two of an enduring political drama.

Archie opined that ’whoever produced the draft of the proposed new constitution may not have served us as well as they might have’. He however confessed to being somewhat at sea because the shortcomings of the existing constitution and the objectives which the proposed replacement sought to achieve had not been articulated in writing with any ’specificity’.

Belatedly, the government sought to remedy this lacuna by saying that it was ’patriating the constitution’ (whatever that means in Trinidad and Tobago as opposed to Canada) and also seeking to construct a new constitution that ’holds true to our historical experiences and our culture’. We are however never told why the constitution which Dr Williams, Sir Ellis Clarke, Tajmool Hosein, Rudranath Capildeo, Lionel Seukeran, and others negotiated at Marlborough House in 1962 is in ’exile’, and which aspects of our culture and our historical experiences have made fundamental revisions necessary or desirable, notwithstanding the reforms that were introduced in 1976 after an exhausting national debate between 1971 and 1976. All that we are told is that the monarchy and the hybrid presidency were stepping stones to an ’executive presidency’. It could just as well be argued that our demography and our historical experiences suggest that we should not experiment with an executive president. We note in passing that it is estimated that approximately 80 per cent of the existing constitution has been retained.

Archie told the nation at large that Westminster democracy as we practise it in the Caribbean was based on the principle of the separation of the separation of powers. He was spot on when he argued that the doctrine of the separation of powers does not mean a separation of responsibilities. It would perhaps have been clearer if he had conceded that the separation of powers is a convenient lawyers myth, and that if we look at the matter functionally, what we really have in practice is a ’separation of institutions sharing power’. It is the dialectical tension between or among the three basic institutions that sustains the rule of law.

Archie also talked about harnessing ’human nature’, but was not as explicit as he might have been about the relevance of the concept to his argument about the need for institutional firewalls. If one accepts that political man is not an angel, it follows that notwithstanding their wigs and robes, judges are not seraphs or cherubs either. Judges can also be vain, pompous, grandiose, eccentric, arrogant and hubristic; we have had our share of robed crusaders who claimed to be struggling to save the nation from power seekers in the legislative and executive branches.

The claim for judicial independence thus often morphs into a quest for judicial supremacy; the judicial ’umpire’ becomes transformed into the judicial activist who has partisan ideological and even personal agendas to serve. We have had a great deal of evidence of these transformations in Caribbean jurisdictions. They are also common in the UK and the US. (See Jeffrey Toobin’s recent best seller, Inside The Secret World of The Supreme Court and my own Judicial Governance in the Caribbean.) Archie is thus correct when he warned that the judiciary is an equal-not a superior-branch of government.’

Judicial hierarchies the world over become very hypersensitive and suspicious when executives encroach on their power. They even claim that the responsibility is theirs to maintain peace, order, and good government.While others share these responsibilities, ultimately, it is the judges who are guardians of the law. That is their prime responsibility. Without an effective justice system, the state would collapse. They are ultimately responsible and directly responsible to the citizenry. Archie’s lament is that the draft now on the table tilts the balance in favour of the executive, and seeks to make the judiciary an ’arm’ of the executive or the default power wielder.

So far, we have examined the problem using the lens of the Judiciary. But as in most complex things, there are various truths. The government too has endorsed the concept of the separation of powers, but clearly believes that justice is too important a public good to be left entirely to the judges who are neither good managers nor crime investigators.

As such, different structural arrangements between and among the branches are required, all in the name of achieving a more effective justice system that addresses the issue of the unacceptable increase in criminal activity and international terrorism. The existing system is seen as being archaic and delay-prone, and in need of expedition.

Judicial review in particular is seen as a mechanism through which judges, opposition politicians, and lawyers seek to grab power, and in the case of the latter, grab wealth. As a frustrated government declared in its reply to the CJ, ’the arrangements for the administration of justice have not always worked to produce speedy...and efficient delivery of service. A more sophisticated justice system is now being demanded by a discerning public aspiring to developed country status. This government considers that responsible and transparent responses to these demands should lie at the heart of the arrangements that are put in place for the delivery of swift justice. Justice delayed is justice denied’.

The Prime Minister himself is on record that all institutions must be accountable to the people but that that accountability must be channelled through those who are directly elected by the people. The Judiciary disagrees stoutly. ’Ultimately, every organ of the state is accountable to the citizens and no one else in respect of those areas for which it is responsible’. The judiciary’s fear is that once a Ministry of Justice is established, that Ministry would have an incentive to constantly seek to expand its power. In doing so it would stealthily whittle away the judiciary’s functions, and perhaps even seek to establish an alternative or competing judicial order. As the CJ warns, ’the danger lies in the potential to gradually and systematically strip the judiciary of its independence..... through ordinary or subordinate legislation requiring no special majority’.

What we are witnessing therefore is a titanic struggle between two state elites, the one claiming primacy in the name of the sovereignty of the rule of law, and the other, the party elite, claiming primacy in the name of the sovereign people who elected it to power. The populists argue that political power earned through election trumps appointed judicial power, while the latter claims that its power is grounded in the supremacy of the law. The struggle continues and so does the analysis.