Correcting the record

TERRENCE W FARRELL

IN A RECENT article (Politics and judicial discord, Guardian, August 30) Dr Varma Deyalsingh, among other things, asserted: “In the Trinity Cross case, the JCPC (Privy Council) was more cognisant of our local cultural identity than local Court of Appeal judges.”

This is simply not true! I am motivated to correct this egregious error and slur on our Court of Appeal because Deyalsingh is a former independent senator who might be assumed to know whereof he speaks, and because it is a canard previously articulated by Senator Jayanti Lutchmedial in response to Senator Anthony Vieira’s motion on the Caribbean Court of Justice some time ago.

The fact is that Justice Peter Jamadar in his excellent judgement (2006) at first instance concluded:

“I have come to the conclusion that the creation and continued existence of the Trinity Cross, given the historical, religious and sociological context of Trinidad and Tobago, combined with the experiences, as well as the religious beliefs of Hindus and Muslims, amount to indirect adverse effects discrimination against Hindus and Muslims.

"However, by reason of the savings of existing law provision in the 1976 Constitution, the letters patent establishing the Constitution of the Order of the Trinity and the Trinity Cross are deemed to be existing law and therefore cannot be invalidated for inconsistency with the section 4 rights and freedoms under the 1976 Constitution. In the circumstances, the applicants' action is dismissed.”

Clearly it was Jamadar’s interpretation of the letters patent establishing the national awards as saved law which prevented him from doing justice in the case. The letters patent had been promulgated in 1969 to establish the scheme of national awards.

Even prior to the High Court matter, the government had since 1997, under the Basdeo Panday administration, established a committee under chief justice Michael de la Bastide to review the national awards. That committee had recommended a change to the Order of Trinidad and Tobago (ORTT), but no action was taken.

Following Jamadar’s judgement in 2006, another committee was established under the Manning administration. The Court of Appeal agreed with Jamadar’s judgement, but again could not rule in favour of the claimants because the pernicious savings clause was also judged by them to apply to the letters patent.

By the time the case got to the Privy Council, the decision to replace the Trinity Cross with the ORTT had already been made. The words of the Privy Council are worth restating for the record:

“Before the Court of Appeal the State did not challenge the trial judge’s findings that the award of the Trinity Cross infringed sections 4 (b), (d) and (h) of the Constitution. On the contrary, as Hamel-Smith CJ (ag) noted at the outset of his judgement, it has taken steps to have the award replaced. A committee was appointed to review all aspects of the award of the Trinity Cross.

"On 17 April 2008, having considered a follow-up report of the committee, the Cabinet agreed that the name of the highest national award should be the Order of the Republic of Trinidad and Tobago, that the name of the society to replace the Order of the Trinity should be the Distinguished Society of Trinidad and Tobago, that the highest national award should be redesigned so as to replace the cross with a medal and that the letters patent should be amended to give effect to those decisions. The question whether the award of the Trinity Cross was discriminatory in the respects found by the trial judge is therefore no longer in issue.”

The Privy Council had to make no findings on the substantive issue of discrimination, but instead dealt with the question of whether the letters patent was in fact saved law and therefore immune from a challenge of unconstitutionality. The Privy Council concluded that the letters patent was in fact not saved law. The Privy Council had to make and indeed made no findings or made no comment about "cultural identity." In fact the only point of significance in that judgement, to my mind, is Lord Mance’s dubious statement in his concurring judgement that non-legislative prerogative power survived the 1962 and 1976 Constitutions.

I have myself commented and written on judicial misconduct in TT and the wider Caribbean. Judicial deference to the executive on policy must not be confused with political bias. The accusations of political or cultural bias against our judges are simply not warranted on the facts which I have also researched and documented, and to the extent that it may exist, is certainly no worse than any other jurisdiction, even the UK.

Let us stop falsely accusing our local judges of bias to buttress the ramshackle case for retaining the Privy Council. Our judiciary is not perfect. None is! But let us as a sovereign people fix our own problems and not outsource adjudication to judges whom we do not know, do not appoint, may not share our jurisprudence, and who sit there at the pleasure of the UK Parliament and not by virtue of our sovereign decision.

Finally, (1) as the society debates national symbols once again, I recommend that all those who wish to comment should read and reread Jamadar’s superb judgement in the Trinity Cross matter, and (2) we must remove the savings law clause in our Constitution; it is a bar to correcting the many injustices inherent in the colonial laws which are still with us and which the same Privy Council that some wish to retain, refuses to touch!