The President has struck at the separation of powers doctrine

Dear Editor,

President David Granger’s remarks in reference to acting Chief Justice George’s ruling in the case filed by Marcel Gaskin was steamrolled to the back burner of the news cycle by the ongoing catastrophe involving prisoners. However, as a nation, we cannot afford such an egregious assault by the executive upon the judiciary, the Constitution and the rule of law, to be swept under the carpet. The ramifications can be many times more calamitous to this nation than the current prisoners’ imbroglio.

The President is quoted in the press as saying of the Chief Justice’s ruling:

“The Chief Justice gave an interpretation based on her perception of the law and I will continue to act in according with my perception of the Constitution… If you can show me the article of the Constitution which requires me to give reason I will comply with the Constitution but I will not do what the Constitution does not require me to do.”

Just imagine for a moment the speed at which this nation will disintegrate into anarchy, if every citizen of this land decides to emulate their President and adopt a similar posture in relation to rulings from our courts by regarding every court ruling, as merely the Judge’s opinion and refusing to obey the same. I cannot recall any head of state publicly making such nefarious remarks in reference to a judicial pronouncement in the English-speaking Caribbean, nay, the Commonwealth, in decades. When I read the remarks, I was immediately reminded of the admonition of an outstanding Indian jurist, who posited thus:

“Once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievances, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. However, it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the court. Upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice” (C.K. Thakker, J in Karnataka Housing Board v C Muddaiah (2007) 7 SCC 689).

It cannot be disputed that the sentiments expressed by Justice Thakker are applicable, without exception, to every democratic society governed by the rule of law. In constitutional democracies like ours, the doctrine of separation of powers is enshrined in our constitution and acts as a glue, which cements the distribution of governmental powers into three main arteries and prevents each from overlapping into the functional province of the other. For the system to yield the conceptually desired results of public order, good governance and the rule of law, then each is mandated to respect the role and functional responsibility of the other. Justice Saunders, now sitting as judge in the Caribbean Court of Justice, articulated the principles quite graphically:

 

“Our democracy rests on three fundamental pillars, the legislative, executive and the judicial. All must keep within the bounds of the Constitution. The judiciary has the task of seeing to it that legislative and executive action does not stray outside those boundaries onto forbidden territory. If that occurs and a citizen with standing complains, the court declares the trespass and grants appropriate remedies… For our democracy to operate effectively, it has been said that it is necessary that a certain comity should exist between the three branches. Each should respect the role and function of the other. The court is subject to and must enforce laws passed by Parliament that are intra vires the Constitution. The executive should respect and obey the decisions and accept the intimations of the court. If this comity does not exist, then the wheels of democracy would not turn smoothly. A jarring and dangerous note will resonate from them. (Saunders J in Benjamin et al v Min of Information et al, Suit No 56 of 1997).

It must be clear to the rational mind that President Granger abysmally failed to exhibit the comity and respect to which Justice Saunders made reference. Consequently, a jarring and dangerous note now resonates. The insistence by the President to hold obstinately to his “perceptions” of what the Constitution means, in disregard of the Chief Justice’s pronouncement on these identical issues, strikes at the very heart of the separation of powers doctrine. Just last May, the Privy Council reiterated that “it is the task of the judiciary to uphold the supremacy of the Constitution and thereby, the rule of law.” (AG of T&T v Dumas (2017 UK PC p. 6)).  In that case, their Lordships embraced the seminal dictum of Bhagwati J of the Supreme Court of India, in State of Rajastan v Union of India AIR (1977 SC 1361) in which he stated:

“The court is the ultimate interpreter of the Constitution and to this court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and, if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law.”

A subsequent statement from the Ministry of the Presidency, which attempted to justify, rather than apologize for and withdraw the President’s remarks, simply exacerbated the situation. As if enough damage was not done and apparently, feeling left out, the Attorney General rushed in like a proverbial bull in a china shop. Characteristically, he aggravated the President’s conundrum by introducing a wholly new concept, hitherto unknown to the English law and jurisprudence inherited by us. In a letter published in the press written by the Attorney General, in which he referred to himself in the third person, he argues that the Chief Justice’s ruling is not “finally binding” because it is open to an appeal. That a ruling of the High Court loses its binding force because it is appealable, is an alien proposition to the jurisprudence of the English-speaking Commonwealth. The true position, with which most first year law students are conversant is, that a ruling of a judge remains in force unless and until it is vacated by another ruling of a court of competent jurisdiction.

Unfortunately, no statement which has emanated from the government since, suggests that the President has recanted from his steadfastly held personal views of what Article 161 (2) means, notwithstanding, that those views have been established to be demonstrably erroneous by the Chief Justice’s ruling. So the nation is no better off with the Chief Justice’s ruling and there appears to be no guarantee that the principles enunciated therein will be used by the President to inform his deliberations on the third set of names which will be submitted to him shortly by the Leader of the Opposition. This state of affairs is simply unacceptable. Is this how the President and his government will treat rulings from the judiciary in the future? This must be immediately clarified. If this is not the position, then it is incumbent upon the President and indeed, it is his constitutional duty, to publicly admit that he erred in the remarks uttered on the 19th of July 2017, and to reiterate his and his government’s commitment to respect and abide by the Constitution and the rule of law. Nothing short of this will suffice.

A failure to do so will conduce to the citizenry making inferences and drawing conclusions, which can only result in irreparable damage to the national, constitutional and democratic polity of this nation.

This issue could very well determine in which direction this nation traverses over the next few years.

Yours faithfully,

Mohabir Anil Nandlall, MP

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