8 Jul 2018

Weighty issues

2242080It is no surprise to find out that MP Marlene McDonald is in the hospital once again. There is a self-defeating tendency for people not to face facts. Especially uncomfortable facts. The cognitive dissonance created by thinking of negative things about self is a driver in ignoring truth.

Marlene is obese. Not merely fat. Obese, corpulent, lardy, rotund.

However, in this day and age of political correctness (PC) gone mad, it is taboo to point out the obvious. So I expect flak for stating the transpicuous.

That aside, the point is that with carrying such excessive weight, Marlene is bound to be plagued by conditions which are triggered by her size and weight. These will only get worse. But since ‘everybody have to eat a food’, I don’t expect her to go on a diet, literally or figuratively, anytime soon.

In the matter of crime, I see that the son of the pint-sized big-mouth, Colm Imbert, has been robbed. Adrian Colm Imbert was robbed when he stopped due to vehicle troubles in the vicinity of Espinet Street, Eastern Main Road, Laventille.

Strangely, the police held one person within hours. Whether it is one of the actual robbers remains to be seen, but it goes to show, when a ‘big man’ is involved, the police can and sometimes do, get of their fat behinds. I fully expect though, with the Napoleonic MP clamouring for results, that a police frame-up is likely, with some poor sod getting sent down for the robbery… yes, I still remember Terrence Calix.

6 Jul 2018

Judicial Review

We often read articles in the newspapers about some person applying for judicial review of a decision made that did not go in their favour. But have you ever wondered what is judicial review? It is a legal process by which we can hold government bodies, or those exercising powers authorised by government under Acts of Parliament, to account for the decisions they make that affect us. Some decisions may affect us directly and some indirectly, but nevertheless these decision-makers must be held accountable. Under the separation of powers, decision-makers can’t merely be accountable to themselves, and it is the domain of the courts to review the process, content and outcome of decisions to ensure that they are fair, just and reasonable.

Let us look at the famous (or infamous, depending how you look at it) Maha Sabha’s radio licence complaint, the Trinity Cross, and Feroza Ramjohn cases against the Patrick Manning government; or Basdeo Panday, and Israel Khan on two unrelated occasions taking Sherman McNicolls (former Chief Magistrate) to task for his decisions. And let us not forget Reginald Dumas challenging the then President Carmona over the composition of the Police Services Commission (PSC).

These are perhaps the most well-known examples of judicial review cases coming out of Trinidad and Tobago in recent memory and are still constantly brought up in other arguments (usually, in some racist manner but that is another separate story).

Did you notice anything in common with the 5 cases I gave as examples? Warning: it has nothing to do with race beyond a superficial coincidence. The common factor in all 5 cases is that the decision-makers, the persons who had the authority in law to decide on the matters, were all public bodies.

We have then, the first rule of judicial review. It can only be brought against a public body, or a body providing a public service. Ah, I hear you say, what about Sherman McNicolls? He wasn’t a public body. Wasn’t he? The Chief Magistrate is exercising powers within the judicial system and therefore is a decision-maker exercising public functions.

The second rule is more nuanced. We must look behind the personalities and examine the circumstances of the complaints. In all cases, the complainants claimed unfair treatment, that the decision-makers took factors into account that they ought to have ignored or did not consider factors that they ought to have considered, or that the process was biased, unfair or procedurally incorrect.

A word of warning here perhaps is necessary. Although race may be a factor creating bias or unfair treatment, the cases given as examples were not decided on racism to any of the parties. The decisions turned on the grounds of judicial review which I explain below.

Returning to the second rule, we can see that judicial review can be triggered by several grounds of action. These can be broadly defined: illegality, irrationality and procedural impropriety. Underpinning these are obviously Human Rights grounds which must always be considered. Of course, these broad ‘heads’ are further subdivided but judicial review claims can and do fall under multiple grounds at the same time.

Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (known as GCHQ) spoke on all three ‘heads’. on illegality as a ground for judicial review, said:

“I mean the decision-maker must understand correctly the law that regulates its decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.”

A decision is illegal under the following conditions:

a) contravenes or exceeds the terms of the power which authorises the making of the decision;

b) pursues an objective other than that for which the power to make the decision was conferred;

c) is not authorised by any power;

d) contravenes or fails to implement a public duty.

To meet the test for illegality therefore, the decision-maker must have ‘strayed’ out of the authorised ‘four corners’ of the relevant statute (Act of Parliament).

To meet the test for irrationality, there must be a measure of ‘unreasonableness’ or, more formally, “whether the power has been improperly exercised or insufficiently justified in the interest of good administration.”

Lord Diplock (in GCHQ) described irrationality:

“It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

Lord Donaldson suggested it was a decision which elicits the exclamation: ‘My goodness, that is certainly wrong!’. In legal parlance, it is also called ‘Wednesbury unreasonableness’. In plain words, stupidity.

To establish irrationality, it is only necessary to prove that the decision-maker was substantially influenced by factors that affected the decision.

Procedural impropriety does not look at the decision itself, but only whether the procedure used to arrive at that decision was fair. This includes the procedure to review the original decision-making procedure; in other words, a court or tribunal may itself be reviewed for ensuring accountability and fairness.

When the procedure is not in a written form (such as a policy or Act of Parliament) the common-law rules of ‘natural justice’ applies. If the decision-maker:

  • acted for an improper purpose
  • acted with bad faith
  • fettered discretion in some way
  • improperly delegated decision-making functions,
  • has a direct personal or proprietary interest in the outcome of the decision (rule against bias),

then the procedure may be considered tainted, and unfair.

The third rule of judicial review is that the person who is applying for judicial review, must be directly affected by the decision of the public body, or in the alternative, the decision must be so wide as to affect the public (section 56(2) of the Civil Procedure Rules 1998 (CPR)).

Returning to my examples, the Maha Sabha and Feroza Ramjohn were directly affected by the government’s decision in their individual cases, but Reginald Dumas wasn’t. He argued that not only was he an activist and former head of the Public Service with a keen interest in the country’s affairs, but also that the composition of the Police Service Commission (PSC) was a matter affecting the public on the larger scale.

It is solely the Courts’ decision (section 56(3) CPR) whether the claimant has ‘standing (also called ‘sufficient interest’) in the matter. The Judicial Committee of the Privy Council (JCPC) decided that Dumas had sufficient interest because of his sincere concern for constitutional issues.

The fourth rule of judicial review is that the claimant must have exhausted all other possible ways to get redress for the adverse decision, or there must be no other legitimate way to hold the public body, the decision-maker, to account. However, this is not a hard and fast rule and may be amended at the Courts’ discretion.

The fifth rule is that the claimant must act speedily to assert his rights (also true of any legal matter). Section 56(4)(11) CPR stipulates 14 days which infers 14 days from the date the claimant was informed of the decision that affects him. The English CPR stipulates 3 months. Again, the Courts can waive this at its discretion.

Of course, the above is a rather simplified overview of judicial review but I hope it explains what it is, why it is important and how it works. You may leave questions in the comments section of the blog, and I will address these asap.

17 Jun 2018

Idiocy rules

2018-06-17_17-38-31The letter to the left, to the editor of the Newsday, and printed on 12 June 2018, is quite revealing in its composition.

The writer is an idiot.

Not only does the writer ignore evidence that is readily available with a simple Google search, he makes elementary mistakes in reasoning a 5 years old child will spot.

Trinidad and Tobago has a murder solve rate of 3.65% or close. It is mainly domestic murders in which the victim and perpetrator know each other, have a history of violence between them, and is readily identifiable that are ‘solved’ by the Trinidad and Tobago Police Service (TTPS).

Don’t believe me? Go check for yourself.

So to say that “If would-be criminals know without a shadow of a doubt that they will be put to death should they murder with premeditation, most of them are less likely to kill” is not only disingenuous but downright dotish.

Simply put, the criminals know that they are ‘untouchable’ since the chance of being caught is less than 4%; a 96% chance on going free and unidentified. Conviction is 1% of that 4%.

No need to fear the death penalty if you know you can’t be caught.

The mistake the writer makes in addition to the point above, is to think that the death penalty went somewhere, by implication if not express words. That is not true. The death penalty is still the appropriate sentence for murder according to the laws of T&T.

The barriers to the death penalty of course, as I have previously stated on numerous occasions, are 1) not catching the murderers, and 2) not going through the judicial process to its finality in less than 5 years.

Sigh.. I eh able, nah. I give up.

31 May 2018

The police–a law onto themselves?

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The article on the left, taken from the Daily Express of Wednesday 30 May, 2018, is an example of where police officers are a law onto themselves. And stupid, but I’ll get to that later.

See here also: https://www.cnc3.co.tt/press-release/man-ticketed-2000-each-5-tinted-windows.

Let me deal with the second point first, highlighted in the shaded red area.

But there is no specification in the law as to what grade of tint is acceptable.  

Instead, issuing fines for vehicle tint is up to the discretion of the police officer.

Hang on… no specification in law as to what grade of tint is illegal? Either the reporter is wrong or all the police in Trinidad since Independence have been acting as judge, jury and executioner… and supported in this by the entire judiciary!

2018-05-31_08-38-02To check this, I went off to the Motor Vehicles and Road Traffic Act 1924 (no, that is not a typo). Here is what I found:

Section 23(1)(d) states “no motor vehicle the windscreen or any other window of which is fitted with class so tinted, treated or darkened as to obscure the view of the inside of the vehicle from the outside;”

Next, I turned to the Motor Vehicles and Road Traffic (Enforcement and Administration) Act 1978 CH 48:52 [http://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/48.52.pdf].

2018-05-31_08-36-17

In the First Schedule, point 61 affirms this.

On the face of it, this is a subjective standard which is against the rule of law. The rule of law requires that law must be accessible, intelligible, clear and predictable (Bingham, 2010). Nothing in Section 23(1)(d) appears to be clear and predictable. Why do I say this?

Most countries have a clear standard – rated in percentage – regarding the blackness of tints.

See here: https://delightandinspire.com/2015/03/18/international-window-tinting-laws-for-cars-driving-around-the-world/

Having a clear standard, with instruments to measure this standard, is an objective test. It does not depend upon the personal view of a particular police officer at a particular time in a particular place with a particular driver and particular vehicle.

Sadly, most citizens do not have the time, legal knowledge, financial resources, or sufficient outrage to have this clear injustice settled at the superior courts, in this case the Privy Council as I fully expect the local courts to side with the dunceys.

The second point is highlighted in green in the first picture. The tickets issued do not have the offence written on them. There are two possible reasons for this:

1) Either PC Duff (see first link to CNC3 website for photo) deliberately did that so the offender would ‘get out’ of paying the fine by challenging a non-offence ticket in court, or

2) PC Duff made a duff and doesn’t know his job.

Of the two, I would not be surprised at either, but I’m voting for no. 2 as the evidence shows me time and time again that dunceys are more stupid than we give them credit for. In other words, when you think stupidity can’t get worse, it’s the dunceys who come along (for the main part) to prove it can.

By the way, how many of you noticed that Motor Vehicle Supervisor II, Dexter Drakes, didn’t/doesn’t know the law either? His quote clearly shows him rewriting the law.

27 May 2018

Stupidity has a price

The Newsday article bothered me. A lot! How the fawk can you be on the job for 3 decades and still don’t know your job? Well, a Trini duncey will explain.

A policeman, Joseph Coraspe knocked down two men who were cycling, Darren Roome and Matthew Tambie, during the State of Emergency in Trinidad and Tobago in 2011. The injuries suffered by the victims were extensive and horrific.

Roome, who was thrown from his bike and dragged face down resulting in his face being disfigured, had to undergo several surgeries and will have to endure more. He suffered severe injuries to his face and spine along with a broken bones in his left leg. He also developed a cataract as a result of the trauma leading to significant deterioration of his eyesight.

Roome’s injuries and subsequent surgeries caused him to lose his external nasal structure causing him severe pain, discomfort and continuous ridicule for how he now looks.

Tambie suffered mild head injuries and multiple soft tissue injury, memory loss, headaches and weakness in the left arm. He was described as being irritable and abusive towards his mother as a result of the accident and was diagnosed with post-traumatic disorder and psychological issues.

What bothered me most was the attitude of the policeman (duncey) and his ‘excuses’. First, before you judge him less harshly, remember that this particular dunce has 30 years experience as a police officer. 30 years!

Coraspe, who testified that he was a police officer for close to 30 years, claimed he was unaware that driving without insurance was a criminal act.

In a report submitted to court, Coraspe admitted to driving at 40 miles per hour (64.4km) while the speed limit was 50 km/hr.

Coraspe said in his evidence that, after the collision, he saw the two men in a nearby drain and the severe facial injury to Roome then went home without waiting for medical assistance to arrive and he did not report the matter immediately.

“Essentially, he fled the scene because, according to him, he heard bystanders making comments about the accident and thought they would blame him. He gave no evidence that he tried to get names of potential witnesses despite the nature of the accident and injuries he observed. His conduct was inconsistent with a lack of responsibility for the accident.” Donaldson-Honeywell stated.

Hold on… after 30 years on the job, ‘upholding the law’ he still didn’t know it’s illegal to drive without insurance. He still didn’t know he must report an accident? He didn’t know he must not leave the scene of the accident? He thought he was Sherman McNicolls? Breach of these are criminal charges by the way. Sometimes, words fail me to describe the stupidity that is pandemic to the Trinidad and Tobago Police Service (TTPS). Stupidity has a price and in this case, the duncey has to pay US $1 million.