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Courts will remove Gypsy and Chaitan

April 01, 2000
By Selwyn R. Cudjoe

THE difference between a legal mechanic and a legal theorist is this: while the former repeats ad infinitum what the law says; the latter seeks to understand what the law means. A legal mechanic performs satisfactorily when he is well briefed; a theorist is at his best when he advances the moral ends law is intended to serve. That is to say, if a slave was brought to court for escaping from servitude, the legal mechanic tries to convince the courts that the slave broke a well-established law and must be sent back to bondage. The theorist is concerned to demonstrate that physical servitude denies a person his manhood rights and therefore he has every right to break the bonds of slavery. Such, indeed, was the scenario in 1857 when Chief Justice Taney, US Supreme Court, ruled that a slave captured in a free state was not legally free and thus could be returned to his master. Justice Taney insisted, "a black man has no rights a white man is bound to respect."

As one looks at the issue that faces the court vis-a-vis Chaitan and Peters one is asked to interpret the law rather than to repeat ad infinitum mechanical formulations one heard in a classroom. Any serious student of the law understands that texts, be they philosophical (Kant's Critique of Pure Reason); religious (the Bible) or legal (the Trinidad & Tobago Constitution) must always be interpreted. It does not lie passively, ready to be consumed by an unresponsive intelligence.

In a letter to the Express (March 18), Mohan Baboolal feels he has responded to my reading of a particular section of the Constitution when he declares that what I am "advocating is tantamount to a violation of the doctrine of the separation of powers, in that the Court cannot change the composition of Parliament." Such a response misses my point completely. Worse, it betrays a lack of judicial reasoning.

In the first instance, I do not advocate anything. I have offered an interpretation about how a particular section of the Constitution should be interpreted. Baboolal's burden is to demonstrate the incorrectness of my reading of that particular section of the Constitution. Citing sections 136 and 118 (2) of the Representation of the People's Act do not refute my position since I never contended that the Courts could determine what Parliament does.

What the Courts can determine and will determine is whether Gypsy and Chaitan were legal candidates on November 20, 2000. If the Court so rules, it signifies that the only legal candidates for Pointe-a-Pierre and Ortoire-Mayaro are Franklin and Farad Khan who thereby become the representatives of the people. Parliament has little to do with the matter. When the US Supreme Court decided that voter counting should stop at a particular date, it did not violate the doctrine of the separation of powers. It merely ruled that, according to State Law, Florida's Secretary of State was bound legally to end the electoral process on a certain date. The effect of that ruling was to make George Bush president of the United States. No one with a modicum of knowledge suggests that the Courts placed Bush in office even though their ruling resulted in Bush becoming the president.

When President Robinson addressed the nation he made it clear he is a thinking being who interprets the law against 45 years of active engagement with the society and its laws. Differentiating between the legal approaches of the strict constitutionalists (those who believe they must be directed only by what they think the law says) and the critical legal theorists (who believe the law is contextual and contemporaneous), the President offered his interpretation of the Constitution. In so doing, he told the nation that laws are not written for all times and places; they must always be interpreted within the context of prevailing circumstances.

Trinidad and Tobago is faced with an unprecedented set of questions that calls for the articulation of a new knowledge rather than a repetition of the same, tired clichés the AG and his cohorts offer. It simply cannot be true that if a 12-year-old imbecile were elected to Parliament in spite of the clear guidelines that stipulate the criterion for membership that Parliament is the only body that can determine whether she stays in Parlia- ment. This is a debased reading of our Constitution, a distortion of the founders' intent and an insult to intelligent men and women. It is the duty of the court rather than the legislature to decide whether such a person meets the minimum qualifications for elected office or not.

Baboolal, a legal mechanic, is trapped by his intellectual limitations. He believes that an innuendo here (Prof. Cudjoe seeks to influence the national psyche) or a scurrilous attack there ("A vitriolic Cudjoe, etc.,") or a silly comment somewhere else ("Prof. Cudjoe was in court last week when the matter of the election petition came up") constitute a serious refutation of what I said. He ought to know that thought is "an unfolding, a description or translation, an assimilation of the unknown into the known," the end point of which is the emergence of truth. Knowledge, itself, can be described as "something newly raised up, an addition to the reality from which it begins."

If my interpretation of section 76 (1) of the Constitution is at variance with Baboolal's, it behooves him to tell me where we differ, why my reasoning is deficient, and his interpretation of this section of the Constitution. Condemnation by association, astronomical illogical leaps, and foolish innuendo do not constitute a serious refutation of a matter that is so important to all Trinbagonians. Although others advise him, he ought not to display his legal incapacity in such a blatant manner.

I await his response and a continuation of our dialogue.

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