March 15, 2018
His Excellency Anthony Thomas Aquinas Carmona, O.R.T.T., S.C.,
President of the Republic of Trinidad and Tobago,
The Office of the President,
The President’s House,
PORT OF SPAIN.
I refer to your letter of the 12th of March 2018 in reply to mine to you of the 7th of March 2018. I sought to be advised by you of the basis of your authority to approve “sabbatical leave” for the Honourable Chief Justice. I did so in order that I might properly consider whether I had any objection to the Honourable Mr Justice of Appeal Mendonça acting as Chief Justice for the period of the Honourable Chief Justice’s absence from the Jurisdiction on “sabbatical leave”, which you indicated you had approved. I still have not had sight of your letter of the 5th of February 2018 approving such leave.
My non-objection to the appointment of the Honourable Mr Justice of Appeal Mendonça to act as Chief Justice must be premised upon whether there was a proper basis for your approval of the Honourable Chief Justice’s application to be absent from Trinidad and Tobago on “sabbatical leave”. I trust you will appreciate that I would be failing in my own duty under the Constitution and other enabling powers and conventions if I were not satisfied of those matters. With my duty in mind, I therefore sought to apprise myself of the basis of your approval.
In its 98th Report of the 29th of November 2013, the Salaries Review Commission (the “Commission”) agreed “in principle” to a proposal by the Higher Judiciary for the introduction of Sabbatical Leave. In paragraph 63(v) of that Report, the Commission, in its consideration of that proposal, did recommend certain guidelines for the eligibility of members of the Higher Judiciary to such leave and the process for the approval of such leave. Additionally, as far as I am aware, an agreement “in principle” obtained from the Salaries Review Commission in no way excludes the Cabinet from having to take a definitive position of this matter, which by itself would have far reaching consequences for the administration of the country and as a burden on the taxpayer.
However, I have not seen any Recommendation of the Commission, for which the approval of Cabinet and the Parliament must have been sought and obtained, for the Higher Judiciary to now be entitled to Sabbatical Leave. The Recommendations of the Commission, for which the approval of the Cabinet and the Parliament were sought, are set out in paragraph 65 of its Report. I also have not seen any Circular from the Minister of Finance regarding the financial arrangements for such leave.
The Honourable Chief Justice, in his letter to you of the 8th of November 2017, by which he applied for “sabbatical leave”, advised Your Excellency that in 2014 members of the Higher Judiciary approved “in principle” a “draft internal policy on the approval of sabbatical leave”. Plainly, that “in principle approval” of a “draft internal policy” has not had the approval of either the Cabinet or the Parliament. I also note that there has never been any Circular from the Minister of Finance or the Commission confirming the approval “in principle” of the Higher Judiciary’s “draft internal policy on the approval of sabbatical leave”. I have no doubt, if such approval had been obtained, that you would have acted efficiently in accordance with your powers under section 16 of the Judges Salaries and Pensions Act Chap 6:02 of the Laws of Trinidad and Tobago to implement regulations giving effect to such approval. Your predecessors in office, in recognition of those powers, so acted to give effect to the recommendations of the Commission regarding the allowance for Judicial Contact. I am respectfully left to conclude that the necessary approval of the Cabinet and the Parliament to the Higher Judiciary’s “in principle approval” of a “draft internal policy” had not been obtained, and that you could not therefore properly act to implement regulations to give effect to that approval.
I am conscious of your stated concerns regarding the doctrine of the Separation of Powers which Your Excellency adverted to in your letter to me of the 12th of March 2018. I have borne in mind that doctrine in considering my actions as Prime Minister in what is now a looming Constitutional crisis. I cannot, however, with due regard to my constitutional duties, accept or recognise any “administrative prerogative” of the Honourable Chief Justice, or indeed Your Excellency, to arrogate unknown powers to unilaterally set the terms and conditions of office for members of the Higher Judiciary. I also cannot, respectfully, accept that the Honourable Chief Justice had any properly grounded legitimate expectation that he would be entitled to take such “Sabbatical Leave”.
Accordingly, I am in the above circumstances unable to advise Your Excellency that I have no objection to the appointment of the Honourable Mr Justice of Appeal Mendonça to act as Chief Justice as you have requested in your letter of the 2nd of March 2018.
I am not satisfied, as I must be, that the Honourable Chief Justice was entitled to proceed on Sabbatical Leave. This position has been, to some extent, overtaken by what transpired yesterday with the Honourable Chief Justice’s issuance of a Media Release. I cannot disagree with the Honourable Chief Justice’s recognition of the need for a legal interpretation of the 98th Report of the Commission as it relates to Sabbatical Leave; which is, at the lowest, a tacit admission that the grounding of the initial basis of his request for Sabbatical Leave is not legally sound.
With his Media Release of the 14th of March 2018, the Honourable Chief Justice indicated his intention not to proceed on Sabbatical Leave. The Honourable Chief Justice also advised the public that he shall instead be utilising a portion of his vacation entitlement. The Honourable Chief Justice’s claim to that utility is based upon his purported entitlement to accumulated leave of thirty-five weeks. I trust that, as a Judge, the Honourable Chief Justice, and Your Excellency both in your current office and as a former member of the Higher Judiciary, have borne in mind the provisions of section 3 of the Judges Salaries and Pensions Act and section 6 of the Judges (Conditions of Service and Allowances) Regulations (No. 2) regarding respectively the definition of “Judge” and the accumulation of vacation entitlements.
I trust that Your Excellency has or in due course will receive a new request from the Honourable Chief Justice to leave the jurisdiction on vacation leave on the basis that he has accumulated such leave as indicated in the Media Release, and that there will be a concomitant recommendation from the Honourable Chief Justice that a Justice of Appeal be appointed to act as Chief Justice during his absence on that basis. I await your invitation to consult on this recent development in keeping with our mutual duties under section 103 of the Constitution.
Dr Keith Christopher Rowley