13 Sep 2019

Lack of common sense – Jumbie’s First Law strikes again

Akilah Holder’s letter to the editor “No law to fix for LGBT community”, published in the Daily Express 13 Sept ’19, is so devoid of sense one can only wonder whether the author is an adult with any reasoning skills. There’s a certain irony that the author is comfortable with two opposing ideas residing simultaneously in her head – this is called doublethink and is different from cognitive dissonance.

The two opposing ideas are these: on the one hand she agrees with the Prime Minister (PM) that the LGBT people are entitled to the same protections under the law as ‘regular’ people. More on this later.

On the other hand, she welcomes the position of the ‘heads of the major religions’ who disapprove of “giving” rights to the LGBT community.

For the edification of Miss Holder and the others, no one has to “give” rights to the LGBT community. They acquired and possess all rights under the Constitution. The fact is that they are denied exercising those rights, which they already have, openly and without fear.

To return to the Prime Minister’s opinion that LGBT people have the same protections under the law, I fear I need to correct the misguided doctor. The Equal Opportunity Act (EOA) 2000 specifically omits “sexual preference or orientationas a status. Compare this with the Constitution, the international agreements which Trinidad and Tobago have been signatories to, and various human rights instruments around the world, and you will see just how backward Trinidad and Tobago really is.

This is the reason for a judgment in favour of the LGBT community in the Jones case. Clearly, the misguided doctor failed to inform himself before speaking. I don’t know for others, but I expect the leader of any nation to be a bit more circumspect and informed before he opens his mouth.

A word of caution to Miss Holder – don’t let your militant Christianity blind you to common sense and basic reasoning skills.

4 Aug 2019

Dr Crowne’s covert agenda

In his latest letter published at Wired868, Dr Crowne’s motive is highly suspect as he appears to be highly confused and seemingly intent on confusing everybody else. Dr Crowne seems to think he can force his opinion on everybody using soundbites and rather vacant, dressed-up utterances based on headline intelligence - by relying on his qualifications and international fame in 'Sports Law'. His agenda is conspicuously to use websites, including Wired868, and newspaper articles for the covert purpose of advertising himself. Those among the undiscerning are his potential prey.

Despite disagreeing with several eminent Queen’s Counsels (QCs) who are qualified in Constitutional law, Dr Crowne has still failed to give any discernible and cogent reason as to his opinion.

On 24th July 2019 on Wired868, he stated, “The Prime Minister’s decision to refer, or not refer, allegations to the President—who in turn is constitutionally charged with appointing a tribunal to formally investigate such allegations—is itself an intrusion into judicial independence and the usual separation of powers. To then have a Court review the Prime Minister’s exercise of his discretion would then further intrude into the separation of powers. It would be a conceptual mess.” This was and is pure nonsense for reasons that I addressed earlier.

Then, on 3rd August he does an about-face to say, “I fear that even in the absence of any findings of misconduct by a Presidential tribunal constituted pursuant to section 137 of the Constitution, there is an undeniable perception that the integrity of the judiciary has been impugned.

The contrast in opinions howsoever arrived at, is startling. In essence, Dr Crowne’s first article makes the case that the PM’s decision not to refer the matter to the President was correct because the PM sought legal advice. Notably in that article Crowne did not examine the nature of the legal advice - when everybody had access to it. Now in his latest letter, he makes the case that whether or not a Tribunal is convened under s137, there is a perception that the integrity of the judiciary has been impugned.

One must wonder - is Dr Crowne lacking self-awareness? Is he saying now, at today’s date, that whilst there is a valid perception of the judiciary’s integrity being impugned, a Tribunal constituted via a 137 referral on the matter of potential misconduct, is irrelevant? This is all very confusing.

Dr Crowne may attempt to wriggle out of his obvious self-contradiction by ‘distinguishing’ the matter of Justice Gobin from the issue of the PM making a referral on other matters. But that just wouldn’t cut. The issue with Justice Gobin simply adds to the pile of evidence that lies with the PM and in the public domain, that the case for a s137 referral is more necessary than ever, if only to ascertain the facts. I have given other reasons, adapted from Hill

On the one hand, he is saying that the Chief Justice need not resign because there is no evidence of wrongdoing. But, on the other hand he says the Chief Justice should resign because there is a perception of wrongdoing. One would think that a lawyer would be eager to test the evidence of whether that perception can be supported by facts.

Dr Crowne may also attempt to distinguish on matters of public and administrative law. He demonstrates no skill or depth of knowledge in his utterances in that area of law. His argument of 24th July was/is fatally flawed because:

1.   The PM’s discretion to refer the matter of the CJ’s perceived conduct to the president is factually not an intrusion “...into judicial independence and the usual separation of powers”. If that was the case, then the Constitution itself is fundamentally wrong to give such a discretion to the PM. But Dr Crowne in his choice of words, taken as a whole, suggests that the President too would be complicit in assaulting the principle of the ‘separation of powers’ by convening a S137 Tribunal. Read what Dr Crowne says very carefully. Like I said previously, the framers of the Constitution were no dummies.

2.    Judicial Review - as Crowne will discover - is a legitimate legal investigation of powers and discretions, derived in law, are used (or not used). Every first-year law student will be aware of this. It is about the Rule of Law. That Dr Crowne says “…to then have a Court review the Prime Minister’s exercise of his discretion would then further intrude into the separation of powers.” - is an absurd conclusion or statement. How? The Courts have a mandate to judicially review any case, where there is merit, by investigating the applications of law carried out by those exercising public functions - which the PM certainly is. This has emerged clearly from the basic principles of the Rule of Law, which harks back to the Magna Carta 800 years ago - and has subsequently stood the test of time.

Dr Crowne would be well advised to stick within his original area of expertise which is ‘Sports Law’ https://newcitychambers.com/dr-emir-crowne-named-one-of-the-worlds-top-sport-lawyers/ - or update his knowledge base of Public and Administrative law fully, before opening his mouth.

In effect - whether intended or not - Crowne would have us tear up the Rule of Law. His words are destructive and self-destructive. He comes across as being out of his depth. This is not only my opinion, this has been stated in the public domain by others who are also equally well qualified legally, as previously noted.

One would have to take what he says with a grain of salt, as the saying goes. If the Chief Justice must resign gracefully (one of the lessons of the Kobayashi Maru test is to accept losing gracefully, but definitely not about resigning or giving up!) it should have been done long ago. Grace is impossible at this point, and the judiciary is already far more impugned by the Chief Justice than merely his exchange with Justice Gobin. The latter is merely a symptom of a far deeper problem caused by the Chief Justice holding onto office at all cost.

26 Jul 2019

Response to Dr Emir Crowne

In response to Dr Emir Crowne’s letter in the Daily Express [25/07/19], Dr Crown seems to be trading on his PhD in the common fallacy of ‘appeal to authority’, rather than display any critical thinking and analysing the law, and the particulars of Dr Rowley’s situation. Let me dissect what he says:

He claims there’s nothing new in the Law Association’s report that was not already in the public domain. It matters not. What is in the public domain required an investigation to ascertain its veracity. Don’t forget that the Court of Appeal, as noted by the Privy Council, clearly stated that the Chief Justice’s behaviour and action:

“had 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”.

That alone would warrant an independent investigation.

Dr Crowne goes on to say that the findings relied on hearsay. That is his opinion. An independent investigation would have called witnesses to either confirm or deny what was said and done, collect evidence and present findings supported by such evidence. Without an independent investigation we (the public) are denied knowing what is true and what is not. What is sure is that the CJ has admitted using his office to influence the dispensation of homes to ‘a few needy people’, causing them to jump ahead of others several hundred times over according to what is in the public domain. That is a prima facie case of misbehaviour in public office. That alone too warrants an investigation.

Dr Crowne then further compounded his error saying that if the court orders the Prime Minister to refer the matter to the President it would be an ‘unusual and twisted intrusion’ into the separation of powers. Nothing could be further from the truth. Courts order retractions of administrative decisions all the time; it prevents the arbitrary use of state power. The separation of powers also includes checks and balances to prevent abuse. The fact that section 137 of the Constitution exists is proof enough that it was envisioned that there might be ‘allegations of misconduct levied against a sitting Chief Justice’, and a process put in place to deal with it. The framers of the Constitution were no dummies.

The same short shrift can be given to his argument that a tribunal appointed by the president would be an intrusion into judicial independence. One cannot have an “independent” judiciary doing whatever it desires. There must be accountability. Otherwise the judiciary will be a law unto itself!

His argument that one would have to demonstrate that the PM’s decision was exercised unreasonably falls short. To demonstrate that the PM’s decision falls short of considering all factors is no great hardship – I can think of six reasons rooted in law off the top of my head why the PM can and should be judicially reviewed.

Don’t forget that the PM is potentially complicit in the CJ’s matters, and cannot be a judge in his own cause. Dr Crowne deliberately avoided this issue.

And finally, Dr Crowne hints at ‘hidden agendas’, repeating the soundbite of the PM. No evidence exists of any hidden agendas besides Dr Rowley’s paranoia. In any event, an independent investigation can explore this as well. Soundbites without substance is mere politics.

Clearly, Dr Crowne should stick to sports law. Administrative law and particularly judicial review seem to lie outside of his area of expertise.

24 Jul 2019

Defending the indefensible

Having carefully read the text of the Prime Minister’s (PM’s) response to the Law Association’s request to reveal the legal opinion and the identity of the opinion giver, I remain marvelling at the PM’s disingenuous excuses. Let’s break it down:

First, the opinion expressed relies almost totally on Rees v Crane [1994] UKPC 4a, which is somewhat surprising considering the later case of Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago) [2006] UKPC 57:

“the court was, however, right to say that if the Prime Minister received a potentially credible report of serious misconduct by the Chief Justice, he had a duty to act and could not simply ignore it.” [Emphasis added].

Of course, the PM is still defending the Chief Justice (CJ), which is not his job. It is for an independent tribunal to assess the evidence, not the PM. Which is why it is surprising that the PM has stepped into the role of the independent investigator, and claims that there is no credible misconduct.

Second, the PM also insists that there is no correspondence between himself and the CJ with respect to the housing issues brought up by Miss Renne during her investigation. Again, it is not for the PM to assess any evidence, especially with himself for being involved. It is for an independent tribunal!

Third, the above also applies to the assessment of the WhatsApp messages between the CJ and Dillian Johnson. It is not for the PM to state whether or not evidence exist or does not exist. It is only after an independent investigation is done, that these questions and more will be answered in a fair and dispassionate manner.

Fourth, the PM is also forgetting the words of the Privy Council in supporting the findings of the Court of Appeal, in the matter of Chief Justice of Trinidad and Tobago v The Law Association of Trinidad and Tobago (Trinidad and Tobago) [2018] UKPC 23, that the CJ’s behaviour and actions:

“had 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”.

Fifth, in supporting an independent investigation, the Court of Appeal stated clearly:

“Thus, the fair-minded and informed observer would recognise that in Trinidad and Tobago, what the Council was demanding at the time was nothing extraordinary or remarkable. It was simply what many others were also demanding, even if done by the LATT in strident and condemnatory tones and terms”.

Therefore, what is in the PM’s head may not be in the minds of the general public.

Sixth, in the matter of fairness to the CJ, the PM and all concerned parties, plus the general public, the following principle applies:

“(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.” [Ex p Doody, (1994)]

One can argue then that because the PM is directly involved as a potential complicit witness, he cannot be an impartial and fair decision maker, but must refer the matter to the President. In other words, he has no discretion to refuse in this matter.

To use a cricket analogy, the PM must bat in his crease, not outside it..

18 Jul 2019

Crime and happiness

The entire country appears shocked at the murder of Raymond Choo Kong. I don’t know why… crime doesn’t have a particular stratum of society that it sticks to. I empathise with his family and friends but in the past, we have had relatives of the poor, the rich, the police, lawyers, CEOs and even of Members of Parliament being struck down unexpectedly. Crime is no respecter of persons.

People may not like me saying this, and I am NOT saying I want this to happen, but I have often felt that it is only when crime hits home to those in positions of power and positions to implement inflexibly enforced changes, then and only then we will see the will to affect those changes.

Much is being made of the fact that Mr Choo Kong was gay. Whether that is a factor in his murder remains to be seen, but one cannot deny that whole segments of society such as the LGBT, the blind, the disabled etc, remain discriminated against and disgruntlement is rising while politicians play with themselves.

But don’t worry. Just Google “happiness set point” and you will find out that no matter what happens, and who it happens to, the level of happiness will rise back, partying and feting will go on (Diener et al., 1985, 1998, 2001).

Once Carnival doesn’t stop or get cancelled…