The issuing of an ultimatum to the President of our country by a lawyer from my law chambers was the source of some consternation and controversy. The President deemed the letter “disrespectful in the extreme,” but did not say why. The headline in the Guardian on June 23 read “President slaps down UNC 36-hour ultimatum.”
The President made no specific comment about the short deadline given for a response, so this headline was somewhat misleading. In any event, the idea that an attorney dared question the actions of the President at all prompted the usual partisan reactions.
PNM supporters were out in full force to condemn the attorney, whilst Opposition supporters commended the brave stance and gumption. Threatening the head of state with legal action is somewhat unprecedented, but there are several misconceptions that should be clarified. The proposed legal action was aimed at the advice tendered by the Prime Minister to the President, as this is what triggered the decision to suspend the CJ.
There is nothing novel about this, as decisions of the PM are subject to judicial review.
The shortness of the deadline is bold, but not wrong. The new court rules of procedure mandate claimants to write a pre-trial legal letter to forewarn the other side that legal action is going to be filed unless the matter is resolved. These letters must contain a deadline that is flexible and can be adjusted according to the importance and urgency of the issue.
There could hardly be a more urgent matter than a challenge to the suspension of the nation’s CJ, hence the 36-hour deadline was justified and warranted in circumstances where more that one month had elapsed since the appointment of the impeachment tribunal, with no word as to when the actual inquiry would commence.
It is worth noting that after this letter was publicised, steps were taken towards “operationalising” the tribunal. Counsel has been appointed to the tribunal and the President has responded to the several queries made by writing the CJ’s lawyers.
There can be no doubt that the prominence given to Ms Bhagwandeen’s letter was a catalyst to these developments. It raised national awareness about the artificiality and illegality of the CJ’s suspension in the absence of any intention or moves to operationalise the tribunal, and forced the foot of the State to mash the accelerator pedal down hard.
The idea that the President is above the law, and hence his actions should not be challenged, is dangerous and wrong. The constitution does seek to immunise the actions of the President, but I have grave doubts whether such immunity is absolute. The President is bound to exercise his powers in good faith, in accordance with the rule of law, the purpose for which it was given and with due regard for the fundamental human rights of all citizens. To accept that the contrary is possible without the possibility of legal challenge is unacceptable in a functioning democratic society with respect for its constitution and the rule of law.
Suppose a president suspends the CJ because the ruling PNM that appointed him was uncomfortable with the CJ. It did not think it could count on the CJ to be loyal and understanding to the PNM. It did not feel comfortable with an Indian CJ, given the context of our racial politics and imminent general elections. He was too independent and was resisting attempts to politically influence and control the judiciary. If a president moves to suspend the CJ and openly says he is doing it for his party on the dictate of the PM, could this be challenged in court?
What if the President openly declared that he was racist and did not want any Afro-Trinidadians working for him on staff? This would be a clear violation of the right to equality of treatment, but likewise be immune from legal challenge. It cannot be that the framers of our constitution intended to place the office of President beyond the reach of the long arm of the law.
The modern developments in the field of administrative and constitutional law do not support the concept of one man being above the law. The President will be immunised from legal action when he is acting in good faith, acts in accordance with the rule of law, promotes the purpose for which it was given, and has due regard for the fundamental human rights of all citizens.
Sacred cows are few and far. If the President unconstitutionally suspended the nation’s CJ in a vacuum, citizens should be able to send a legal letter to the President to forewarn legal action and ask relevant questions without being branded disrespectful.
More is expected from the head of state.
by Anand Ramlogan 2007-07-01