It is heart-warming to know that there are people who indeed want to get a full grasp of the provisions in the Constitution. I thank Ivory Kelly for reading the article I wrote in the June 27 issue of the Amandala, and thank her for paying such keen attention to the word “may.” This word in law gives a discretion, and is not mandatory, although in some special but rare circumstances, the court has found it to mean MUST, when the court has been called upon to interpret statute.
I submit that the word “may,” used in the Constitution at section 98(2), which reads “…a person holding the office of Justice of the Supreme Court may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgment, or to do any other thing in relation to proceedings that were commenced before he attained that age,” is conferring a discretion on the person holding the office. …
“May” does not weaken the Constitution
Please note that the word “may” is intended to confer a discretion, to be exercised by the Justice, in this case the Chief Justice. It is not to be exercised by the Governor General, or the Prime Minister in consultation with the Leader of the Opposition, but rather clearly, by the Justice.
Also, the word “may” is used twice, because it wants to allow the Chief Justice the flexibility to remain in office “long after attaining that age,” but it is clear that he can use his discretion and remain in office to complete his task as Chief Justice, which, according to this provision, does not just come to an end August 5, on his birthday.
However, in exercising this discretion, the key item the Chief Justice needs to take into account is whether this is “necessary to enable him to deliver judgments or do any other thing in relation to proceedings that were commenced before he attained that age.”
This, therefore, further means that the Chief Justice has the prerogative to start hearing his last case on August 4, which is the last day before he attains the age of 65. By this provision, the Constitution protects him and the parties to the case by ensuring that his age would not be used as an issue to abandon hearing the following day upon the attainment of age 65.
The use of the word “may” does not weaken the Constitution, but rather, strengthens it, since it ensures that the Judiciary is independent and free from any form of interference by giving the Chief Justice this wide discretion and latitude to set the timing when he is to demit office. This flexibility afforded to the Chief Justice is a sign that our Constitution fully recognizes the independence of the Judiciary, and does not subject the CJ to the whims of the Executive or Legislature, or any influential power.
CJ to remain “for so long”
The spirit of our Constitution is that the office of a Chief Justice should be respected, and it does not demand a strict cut-off date, and allows some latitude because it assumes that the Chief Justice would want to fully perform his duty to the very end. Also, it does not make provisions for the Executive to interfere by booting out the Chief Justice on the exact date he attains his “prescribed” age because the framers of the Constitution assumed that these parties would be men and women who would be always acting in the interest of justice, and not from personal conflicts and interest. Further, it assumes that whomever is appointed to the seat of CJ would be a person of integrity and propriety, that there would be no need to assume he will abuse the hospitality accorded to his office.
Furthermore, it is clear that the Chief Justice cannot stay in office indefinitely, and that his extension of time into any substantial period would require going through the same process used to appoint him. That is, appointed by the Governor General on advice of the Prime Minister after consultation with the Leader of the Opposition. Thus, the “for so long” does not connote indefinite time, but rather, time which would not conflict with the other provisions of the Constitution, which stipulates how any Justice obtains an extension to his tenure.
However, it must be noted that Section 98(2) states that the Chief Justice “may continue in office for so long after attaining that age,” and that “for as long after” clearly did not envision any member of the Legislature or Executive pressuring the Chief Justice to indicate an exact time to vacate office.
But as a learned officer of the law and as a person understanding these powers, any Chief Justice would know that “the long after” referred to in section 98(2), has to be viewed in context of the time that is “necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before…”
It would therefore be the prerogative of the Chief Justice to pace out his work in such a manner as to ensure that he delivers his final judgment the day before his birthday. Or, he may chose to not shirk the duties of his office and deal with the excessive work-load by performing at full steam up to the very end, which will require phasing out upon the attainment of 65 years. The Constitution bestows on him that discretion.
The Trinidad Chief Justice case
A similar issue has been long been adjudicated in the Trinidad courts, and reached as far up the legal system as the Judicial Committee of the Privy Council, in the case of Sookoo and Another v Attorney General (1985) West Indian Report, volume 33.
However, unlike the Belize Constitution, the Trinidad Constitution requires the Chief Justice to get permission from the President to stay on past his birthday, so the spirit of their Constitution is different and vests the discretion in the hands of the President of that Republic, and not solely the Chief Justice, who advises the President that he, as CJ, would like to continue in office for a period necessary to conclude his work.
That section refers to “Justice,” but in the interpretation section it is already made clear that “Justice” includes “Chief Justice,” except where otherwise specifically stated. It reads:
“136(2) Notwithstanding that he has attained the age at which he is required by or “under subsection (1) to vacated his office, a Judge may, with the permission of the President, acting in accordance with the advice of the Chief Justice, continue in office for such period after attaining that age as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.”
However, our Constitution does not give that power to grant permission to anyone, and surely did not envision subtle or blatant interference by the Executive branch of Government. Thus, it matters not that the Prime Minister tried to get the Chief Justice to set down a precise time of departure; constitutionally, the Chief Justice has no obligation to furnish such a date, or to comply with such a date.
Rather, based on the authority of this Privy Council case, the Chief Justice can even take on new matters past his 65th birthday.
“may continue in office”
It is submitted that leading up to or just after the Chief Justice’s birthday when he “may continue in office,” no one, or any branch of Government can prevent or mandate that the Chief Justice be precluded from performing the full functions of his office.
However, the case of Sookoo sheds light on an even more important provision of the Constitution, when its decision states:
“the expression, ‘continue in office,’ means continue in the office which the judge held on attaining retiring age; in the case of Chief Justice, he continued in office as Chief Justice and during his continuance in office, his functions were not restricted to the completion of unfinished business.”
The relevance of this finding is to unequivocally indicate that after the age of 65, the Chief Justice, if he remains or “continues in office,” does so with all his power of Chief Justice. This power includes the hearing of matters, the assigning of cases and the making of rulings in cases.
The answer can be concluded
The Belize Constitution, by omission, makes it clear that the Chief Justice, in our system, does not have to ask the permission of anyone to remain in office under Section 98(2), because if he had to, like the Trinidad Constitution, it would have said so.
Based on the foregoing and using the relevant portion of the decision in Sookoo, the answer to the question as to who “may” exercise the discretion for the Chief Justice to remain in office past his 65th birthday in Belize leads to no other conclusion than ONLY the Chief Justice can make that decision unilaterally. Our Belize Constitution so wants it, unlike the Trinidad Constitution.
So I ask – who says the Chief Justice MUST go by instruction or pressure from the Prime Minister or the Executive? Are we re-writing our Constitution, or giving it a new interpretation? The answer can be concluded!