The Law Association of Trinidad and Tobago (LATT) has echoed the concerns expressed by some members of the public concerning the system of appointment and re-appointment of judges in the Industrial Court.
As such, the LATT is now calling for changes to be made to the way the judges of the Industrial Court are re-appointed.
The media release comes days after concerns were raised by the Joint Trade Union Movement (JTUM) and the National Trade Union Centre (NATUC) about President Christine Kangaloo’s decision not to renew the contract of former Industrial Court President Deborah Thomas-Felix and instead appoint Heather Seale.
However, in a statement sent on Friday, the Law Association explained that for the benefit of the public, judges of the Industrial Court are appointed for periods of at least three but not more than five years at a time and are eligible for re-appointment.
During their term of office, they enjoy financial security and security of tenure, and to that extent, their independence is assured.
That independence, according to the Law Association, becomes fragile when a judge who wishes to pursue a judicial career at the Court seeks re-appointment.
It said were it the case that the decision to re-appoint a judge of the Industrial Court was made by the Judicial and Legal Service Commission, that constitutional arrangement would have been designed to ensure judicial independence.
But the power to re-appoint all judges of the Court, with the exception of the President, is vested effectively in the Cabinet, which advises the President of the Republic on who should be re-appointed.
On the other hand, the President of the Court is appointed by the President of the Republic after she consults with the Chief Justice.
“The fear that judicial independence may be compromised in the system of re-appointment arises from the fact that, whether through statutory corporations, such as WASA and T&TEC, or state enterprises, such as Caribbean Airlines, or directly as the employer of public servants, the Government is a party to many disputes and matters before the Industrial Court. The uncomfortable situation created by law, therefore, is that judges of the Industrial Court are called upon to adjudicate on the merits of cases presented to it by the very person who has the power to decide whether the judge should be re-appointed at some later point in time. It is, therefore, not difficult to appreciate that trade unions representing workers employed by government entities might be justifiably concerned that a judge whose term of office is near expiration and who wishes to be re-appointed might hesitate before giving judgment against the Government,” it said.
The LATT said as T&T’s highest Court put it in a similar context, there is a risk that a judge seeking re-appointment might seek to commend herself to the Government as the authority “with power to meet her wishes.”
According to the LATT, the risk that “a judge might seek to ingratiate herself to the Government in this way is no doubt of less concern in the case of the President of the Court who owes her appointment not directly to the Government but to the President of the Republic who need only consult with the Chief Justice.”
The law associated added: “But given that the President of the Republic herself is effectively elected to her office by the Government, it is hard to eliminate altogether the perception, if not the risk, that an incumbent President of the Industrial Court might strive to avoid alienating the Government in order to pave her way to re-appointment. Moreso, since the reappointment process is neither transparent nor guided by any objectively verifiable standards, Her Excellency is not required to give any reasons for her course of action.”
“The Association hastens to make clear that there is no basis for any suggestion that the President’s decision not to re-appoint Her Honour Mrs Thomas-Felix was carried out other than strictly in accordance with the law,” it said.
The Law Association said it knows of no basis for thinking that the President’s decision was motivated by any desire other than to ensure the further development of the Industrial Court and the strengthening of the administration of justice.
“However, it is incumbent upon us to note and to warn that for as long as judges of the Industrial Court are perceived to depend upon the Government for their re-appointment to the Court, concerns about the Industrial Court’s judicial independence will re-surface. We urge the Government to seriously consider appropriate amendments to the Industrial Relations Act to vest the power of re-appointment, at least in the Judicial and Legal Services Commission,” the Latt said.
The Law Association also congratulated Seale on her appointment as President of the Industrial Court.
The LATT also took the opportunity to record its profound gratitude to outgoing President, Mrs Deborah Thomas-Felix, for her yeoman service to Trinidad and Tobago.