17 Sep 2018

The fall of it all

5b9db30438973.imageMarket Facts and Opinions (MFO) carried out a survey in which 83% of respondents said that same-sex relationships in Trinidad and Tobago should not be legal. I have bad news for those people…

You’ll be dragged by the scruff of the neck, kicking and screaming in protest, into the 21st century. The tide is already against you, as is the Constitution of Trinidad and Tobago (“the Constitution”).

Let me begin with the Constitution; Chapter 1, section 4 in particular, where the rights of citizens are given voice:

“It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

(c) the right of the individual to respect for his private and family life;

(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;

(e) the right to join political parties and to express political views;

(f) the right of a parent or guardian to provide a school of his own choice for the education of his child or ward;

(g) freedom of movement;

(h) freedom of conscience and religious belief and observance;

(i) freedom of thought and expression;

(j) freedom of association and assembly; and

(k) freedom of the press.”

Clearly, the Sexual Offences Act is incompatible with the rights at b, c and d. So is the Equal Opportunity Act 2000 where on page 8 it defines ‘sex’ as not including sexual orientation.

imageParagraph 144 of Justice Rampersad’s judgment in Jones v AG of Trinidad and Tobago and others (2018) quotes extensive case law where discrimination of homosexuality was found to be incompatible with modern human rights in democratic societies.

My take on this is that the human rights aspect will be given the importance it demands and any incompatibility with other parts of the Constitution and/or statutes (Acts of Parliament) will result in amendments to preserve the human rights aspect, since the fundamental rights are protected within the Constitution.

14 Sep 2018

Thought for the day

Justice and truth are the common ties of society; and therefore even outlaws and robbers, who break with all the world besides, must keep faith and rules of equity amongst themselves; or else they cannot hold together.

(Locke 1690, I.ii.2.)

9 Sep 2018

I’m making enemies again

Trinis jokey too bad, oui. Lemme explain.

I saw a post my cousin put on FaceBook, about people going to the cricket (Caribbean Premier League or something – I am not a cricket fan – referred to as CPL), and paying touts to park in private property, the fenced yards of people living in the area. Some of the touts were so brazen, they cut the locks off the gates, put people to park there and charged them.

Of course, the owners called the police wreckers, especially when they realised they can’t get sleep because people coming back late hours AFTER the match to get their vehicles. The wreckers tow the vehicles and the owners have to pay TT$500 to get a vehicle back from impound.

From my point of view, I like the idea of them paying twice over for stupidity like that. Maybe it’s the sadist in me, but people learn through pain too, not only reward. So, after being hit in the pocket twice, and inconvenience of losing time having to make their way to the impound lot outside the city… well, I mentioned I have no sympathy for them. If you can’t see you’re parking in private property or in front of private property, you deserve that shit that comes your way.

Now, apparently my cousin’s husband was one of those who was caught in this. I didn’t intend to insult him, but he fell into the bracket of dotish people.

My cousin took offence, yammering on about how I don’t know her husband… blah, blah, blah. So, because he is your husband, he can’t be dotish? I tell you, some people eh.

But further, my cousin has resorted to the cheapest of all tricks, ad hominem attacks on me… calling me a conman who is in hiding in the UK. Not the first time I’ve heard such rumours, though oddly enough, the same cousin met me several times when I went back to Trinidad on holidays. And was nice to me.

Now, if I am a conman, she has my address to give to the police. Let’s see what the future unfolds. Open-mouthed smile

In the meantime, I have even less sympathy for her husband.

29 Aug 2018

A chilling tale, or a lesson to us?

With the forthcoming demise of Petrotrin, this story becomes yet again, quite profound.

Hinduism as a religion is old. Very old. From long eras past, lessons have been taught to each successive generation via stories. I came across one such story recently I would like to share; you may see the point after reading. It is a bit long, but if you read, I trust you see the light.

Somadev, a great hermit, lived in a forest that spread along the borders of two kingdoms. Dhanadutta and Dhiradutta were the kings of the two neighbouring lands. Although the two kings competed with each other on many things, their reverence for Somadev was equal. Whenever they faced any problem, they met the hermit, who never failed to give them the right solution.

Generally, the kings met the hermit individually. There was never an occasion for both the kings to go to him together. The hermit had equal affection for both. In fact, it was because of the hermit that the two kings were on friendly terms.

One day, the two kings met in the forest while hunting. Leaving their entourage behind, both went to meet the hermit to pay him their obeisance. The hermit was pleased to see them.

He said, "It is very good that you came. I am about to go into a trance, and for five long years I shall remain in that state. You will not have the benefit of my advice. However, here are two small caskets. Each of you can take one home. If you face a crisis which proves too strong for you, then open the casket. The solution will come out of it. But make sure that before opening the casket you have tried all other means of solving the crisis. If you misuse the casket, I will take it back from you when I come out of my trance".

The kings received the caskets with gratitude and returned to their palaces. Soon a severe drought befell both the kingdoms. Crops failed. The people grew panicky.

King Dhanadutta opened the casket given to him. A million gold coins spilled out of it. The king spent the wealth in buying foodstuff from distant lands for his subjects. Thus the drought, which could have resulted in a devastating famine, did not cause much hardship to his people.

But Dhiradutta, instead of opening the casket, mobilised all his resources, dug wells and canals, and encouraged the people to grow new crops. He did not allow a morsel of food to go out of his kingdom. The people had to experience hardship, but the crisis passed when the next monsoon came, and all were happy.

Dhanadutta now desired to launch new projects in his land so that his people would grow more prosperous than Dhiradutta's subjects. He wished to know how to proceed in the matter, and so he opened his casket again. This time there was a line of writing inside the casket. It read: "Wait and see".

Next day, a stranger met Dhanadutta and said, "I have invented a device by which I can tell if there are precious minerals in your kingdom hidden under the earth. I can help you locate them on one condition: I shall own half of whatever is discovered".

Dhanadutta found in it an easy way to prosperity. He utilised the services of the stranger and found large deposits of minerals.

A few days later, the stranger met Dhiradutta and put forth the same proposal. But Dhiradutta was not willing to accept his condition.

Five years passed. The hermit woke up from his trance and paid a visit to the two kingdoms. He saw the subjects of Dhanadutta prosperous and happy. But Dhiradutta's subjects, though not unhappy, were working hard for their prosperity.

The hermit asked both the kings to meet him with the caskets. He let them tell what they had done with the caskets. Dhiradutta said he had not used the casket at all. Dhanadutta narrated how he had used it twice and stated, "The result is obvious. My subjects are happy". But to Dhanadutta's surprise, the hermit asked him to return the casket while he allowed Dhiradutta to keep his.

"Tell me, why did the hermit take back the casket from one who had made proper use of it?

"Dhanadutta did not make proper use of the casket. He made no other effort to get over the crisis before opening the casket. He provided food for his subjects, but that he did at the cost of their own zeal to try solving the problem. Thereby he made them lazy.

Without any thought he allowed the stranger to own half of the minerals of his land. Thereby he deprived the future generations of the land's wealth.

Dhiradutta, on the other hand, was confident that the casket will go to his rescue if his own efforts failed. He made best use of the casket by not using it! That is to say, the confidence he got from the mere possession of the casket was his strength. He did not sell away any part of his land's minerals for immediate benefit. Hence, he deserved to keep the casket".

Do you see my point?

28 Aug 2018

Prime Minister’s apathy

Since the release of the judgment from the Judicial Committee of the Privy Council (PC) in the matter between the Law Association of Trinidad and Tobago (LATT) and Chief Justice Ivor Archie (CJ), there have been several commentaries concentrating on either the position of the LATT or the CJ. Oddly enough, no one has scrutinised the behaviour of the Prime Minister (PM) in this entire situation.

Prior to the release of the judgment, I had written:

I am aware that the judgment is merely the first stepping stone… it is only to determine whether the CJ can be investigated by the Law Association (LATT) with a view to determine whether a recommendation can be made to the Prime Minister (step 2) to refer the matter to the President (step 3) to set up a tribunal (step 3) to investigate the CJ (step 4).

Now that the judgment has been given, I realise that there are still 5 steps left… In other words, initially there were 6 steps, the PC judgment being the first in the series.

1.    LATT must investigate the CJ to determine whether there is indeed cause for a recommendation to be made to the PM – to make a recommendation to the President triggering section 137 of the Constitution.

2.   If a recommendation is made for the PM to trigger section 137, then it follows that the PM should do so, although he is not bound by any means to follow the LATT recommendation.

3.   The President must then set up an independent tribunal to investigate the allegations surrounding the CJ.

4.   The findings of the tribunal will determine whether the President makes yet another recommendation to the Privy Council (PC) to remove (or not remove) the CJ from office.

5.   The Privy Council removes the CJ, or not.

This is unnecessarily long-winded and further brings the judiciary into disrepute, since clearly,

a)   we have a sitting Chief Justice who is accused of serious misbehaviour in office, and

b)   who just as clearly used his position to further the personal circumstances of convicted criminals, as well as

c)    manipulating a sitting judge into unethical behaviour unbecoming of the office of that judge herself – quite possibly another case of misbehaviour in office, and

d)    creating yet another situation which no one is investigating to date, and

e)    creating a mess when he ‘fired’ an appointed judge, to which we still do not know whether he was acting as CJ or Chairman of the JLSC. Either way, that matter is before the courts, as ironically the CJ himself went to prove that the only way to remove a sitting judge is via the Prime Minister using section 137 of the Constitution to recommend steps 1 to 6 outlined above.

Keep in mind that this junior judge mentioned in (c) above has also admitted to assisting a convicted criminal using her office as the lever for the help that was obtained and admitting that it was at the instigation of the CJ – her line manager – which pressured her into this action.

Keep in mind also that the PC has reiterated that the Trinidad and Tobago Court of Appeal had found that the allegationshad such a negative impact on the Office of the Chief Justice and the Judiciary that they threatened to undermine the administration of justice and rule of law”.

In all of this, the PM has been uncharacteristically and unexplainably silent. Bearing in mind that it is not only the duty of the President to protect the Constitution, but also the duty of the PM, one can only wonder at this.

One can lay blame – or at least a large part – of the current situation at the feet of the PM for having made the country into a laughing stock throughout the Commonwealth and the world. Outsiders viewing the country might well be thinking that politicians in Trinidad and Tobago are only playing at understanding the constitution, and one can plausibly sympathise with them.

There is no sound reason for the PM not to recommend to the President to follow the section 137 procedure. Certainly, there is no physical impediment that the PM has which prevents this. Therefore, one can only speculate that there is some mental impediment which has afflicted the PM.

A section 137 recommendation would have possibly saved the country, the judiciary, the PM himself, the CJ and numerous other parties this international embarrassment. The matter may have well been concluded by this time, and guilt or innocence established, the CJ would have been in no doubt about his position. Neither would the citizens.

The discretion to trigger section 137 lies with the Prime Minister, everyone agrees that this is so. Failure to do this, considering the grievous accusations and the apparently blatant misbehaviour and actions of the CJ, is damning upon the Prime Minister. By failing to consider section 137, the PM has effectively fettered himself such that the PM has left himself open to legal action.

Fettering of discretion is an important part of public law, and the basis of many judicial review claims, with good reason. The PM’s adamant refusal to even consider section 137 is effectively a fetter upon the discretion granted to him by the Constitution and expressly forbidden by numerous case precedent. Lord Reid in British Oxygen Co v Board of Trade [1971] AC 610 said that an authority which is granted a discretion must not refuse to listen at all, which is effectively what the PM has done by his obstinate stance of ‘non-interference in judicial matters’.

"A decision that is the product of a fettered discretion must per se be unreasonable"

(Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299).

On a different but related note, the cynic in me wonders what is going on between the CJ and the PM, as it appears that the PM is ‘protecting the CJ’ for some unnamed reason. Rumours are already circulating about race, in that they are of the same race and ethnicity. One shudders at this, but clearly, rumours such as this one damage both the PM and the Judiciary further.

It is quite clear that the PM needs to give the country a full and coherent explanation of his apathy.