By Anand Ramlogan – 2007-06-23
The suspension of CJ Sharma was effected pursuant to section 137 (4) of the constitution. This section authorizes or triggers the power of suspension in circumstances ‘where the question of removing a judge has been referred to a tribunal’.
It is submitted that the reference contemplated by section 137 (4) is to an effective tribunal that is ready and able to perform its function and commence its enquiry forthwith. It is a necessary constitutional implication that the administrative arrangements and infrastructural support required to enable the tribunal to perform its function and commence its enquiry without delay should be put in place either before or immediately after the appointment of the tribunal and/or the suspension of the CJ.
The tribunal comprising Lord Mustill, Sir Vincent and Mr Morrisson was appointed on May 18th 2007. Over one (1) month has elapsed since its appointment and to date no steps have been taken to ‘operationalise’ the tribunal so that it can commence its enquiry.
Is the government not guilty of unreasonable delay in the performance its duties in relation to providing the tribunal with the necessary administrative and other resources that are required to enable the commencement of this enquiry?
1. Among the several matters that must be attended to before this enquiry could commence are:
Payment of the agreed remuneration for the persons appointed to serve on the tribunal;
Co-ordination of the diaries of three busy tribunal members who would no doubt have other important commitments to determine when they can sit together as a tribunal.
The appointment of a secretariat and/or the necessary administrative support staff to service the needs of the tribunal;
The appointment of at least 2 CAT (Computer Aided Transcript) reporters to record evidence at the hearing;
The appointment of independent (overseas) Counsel to advise the tribunal;
The provision of funds to the CJ to enable him to retain the services of Attorneys to represent him at the enquiry;
The identification of an appropriate venue for the commencement of the hearing of this enquiry;
The making of rules and/or procedures by the tribunal to inform the parties about how the enquiry would be conducted and the relevant rules and procedures;
The announcement of whether the tribunal will sit in open court or in private so that members of the medial and the public can know whether they would have access to the hearing;
The drafting of a time table with deadlines for the commencement, completion and reporting of the tribunal.
CJ Sharma must retire in January, 2008. Was he effectively terminated or constructively and summarily dismissed without a hearing under the guise of suspension?
Delay is clearly being used as part of the political strategy and tactic of the government to manipulate the procedure for the removal. Did/Does the government ever intend to give the CJ the opportunity to defend himself against the allegation that there is cause for his removal in a reasonable and timely manner that would ensure his reinstatement in the event the tribunal rules in his favour?
The imminent retirement of the CJ makes it imperative that the Executive acts with greater dispatch and a sense in urgency in the establishment of an effective tribunal that is ready and able to commence sitting. The foot-dragging thus far simply underscores the ulterior political intent of the government in this matter.
The suspension of the CJ is, in the circumstances, contrary to the express purpose, spirit and intent of the doctrine of separation of powers, the independence of the judiciary as an organ of the State, the entrenched security tenure for judges and the limited grounds for their removal from office in accordance with the procedure set out in the constitution.
The procedure for removal was meant to be a safeguard against abuse of power and attempts by the Executive to compromise or interfere with the independence of the judiciary. This procedure has been and continues to be manipulated by the executive in a manner that undermines and/or removes the very procedural safeguards that were meant to protect the independence of the judiciary and the public’s right to an independent judiciary. It would be serious and irreparable fracture of the Constitution if the CJ has been forced out of office under the guise of a suspension that bears a Presidential stamp of approval.
See: letters attached