10 Oct 2017

TTUTA ‘chupidness’

I was appalled to read in todays news that Trinidad and Tobago Unified Teachers Association (TTUTA) President Lynsley Doodhai claimed that teachers are NOT required to supervise students during breaks. To put it bluntly, Boodhai is legally incorrect. Or a damn fool in other words.

When students are in school, teachers have a duty of care to ensure their safety. It may not be something they accept or want, but it is what it is – a duty imposed upon them by law. It is the reason why teachers in the UK, for example, can be prosecuted/sued for negligence in matters arising out of not meeting the duty imposed upon them.

The interesting question is why is a duty of care imposed upon teachers? It is simple; they are the adults and are deemed to have better judgment and so the duty is imposed upon them in lieu of parental responsibility. Just think of a parent telling a judge, “Well, Your Honour, I eh responsible for meh son breaking 3 ribs because I was on a break.”

So for the President of TTUTA not to know the responsibilities of the people he represents is akin to the Police Commissioner not knowing how to fight crime... oh wait, that already is proven. I dare say readers know what I mean...

23 Sep 2017

Thought of the Day

‘There are, in fact, two things, science and opinion;
  the former begets knowledge, the latter ignorance.’

Hippocrates

22 Aug 2017

How did this happen?

Benz crashI’m trying to imagine the circumstances that a person can damage a car so badly. What comes to mind are two things: speed and idiocy.

1 Aug 2017

A constitutional crisis

In response to Martin Daly's column, I submitted the following on wired 868's website:

There are a number of interesting constitutional issues arising out of the JLSC situation, not only with Marcia but also with the Dumas judgment from the Privy Council. People must remember that these go hand-in-hand. This affair is more complicated than it looks – as a closer examination will unfold.

Let us examine the Dumas challenge to the composition of the JLSC. I have written before:

If the composition of the JLSC is ultra vires (meaning outside of the law) then it means that it did not have the legal authority to make decisions. Any decisions made during the period it was illegally composed would be thus illegal in themselves. A careful examination will reveal that any appointments, promotions et cetera would be void. These decisions would number in scores if not hundreds and would affect appointments in both the judiciary as well as the public service.

In turn, any decisions taken by those so appointed will be void as well. So, any judge or magistrate so appointed will not have the legal authority to hand down judicial decisions. Over the past several years this would number possibly in the thousands or in tens of thousands. Any such decision handed down can, therefore, be challenged in the courts which would further be burdened with expense and time bottlenecks. Prisoners who were found innocent or guilty during this period would challenge decisions; to be retried in the former and sentencing in the latter.

Think of thousands of people applying for judicial review in a matter of days or weeks… The sheer scale of incompetence in this fiasco is mind blowing. This is the nature of the beast and is the best reason that the Chief Justice must resign. Because, after all, this was knowledge that he possessed at the very beginning and should have protested the illegal appointments to the JLSC of those who were unsuited.

Therefore, it would seem that Ramesh L Maharaj and his client Marcia, are jumping the gun so to speak. Because in the end, if the JLSC was illegally constituted at the time it "appointed" her, then her judicial review will fail on the basis that she was never a judge, and cannot be entitled – or even fired from – something she never possessed in the first place. It stands to reason then that even if she "wins" her judicial review case, that decision will most likely be declared null and void upon determination of the Dumas challenge.

A legislative solution as proposed by the Attorney Gen is another example of adding mud to the already murky soup. Will it really solve anything? I sincerely doubt that, as the original problem still lies, and remains unsolved. Legislation passed will not only affect the 53 persons affected in this fiasco, but potentially any others in the same situation – what applies to one applies to all. Just another example of not appreciating how the law functions,by the Attorney Gen and his advisers.

Again, I see that the people (the population as well as government members) do not truly understand this scale of the incompetence shown by the JLSC. The resignation of the members of said body on "personal grounds" hardly justifies or solves the mischief it created. Repercussions from this will continue from now to years to come, and lawyers will be laughing all the way to the bank.

9 Jun 2017

When an argument goes wrong

Image result for Dr Emir Crowne:

Judicial independence is under attack in this country. It is under attack by the very bar that prides itself on independence and self-governance. That stinging irony aside, these attacks should not be taken lightly.

The Supreme Court of Canada described judicial independence as: “[the] lifeblood of constitutionalism in democratic societies… An independent judiciary is absolutely necessary to ensure that the power of the state is exercised in accordance with the rule of law and the provisions of [the] Constitution.

“In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals… Judicial independence further represents the cornerstone of the common law duty of procedural fairness, which attaches to all judicial, quasi-judicial and administrative proceedings, and is an unwritten principle of the Constitution.

“The twin aspects of judicial independence and impartiality are relevant to [the current matter]. The first is the requirement that the judiciary function independently from the executive and legislative branches of government… The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice.”

(Application under s. 83.28 of the Criminal Code (Re), [2004] 2 SCR 248—internal citations omitted).

Judicial independence essentially means that judges and other judicial officers are free to exercise the functions of their office without fear of reprisal, retribution or termination. The elements of such independence are security of tenure, financial security and administrative independence. Each of these elements is essential to ensure that democracy itself functions without undue influence from the State, unsuccessful litigants and third parties—like a select group of lawyers.

Indeed, the Law Association can pass any motion it wants. It matters not. The motions are purely symbolic; and, in a sense, ‘miss the point’.

As members of the legal profession, you cannot tout the importance of an independent judiciary while at the same time passing motions for the removal of judges. It is an affront to the very principles that a self-regulated bar—in a democracy no less—is supposed to stand for.

The above is a ‘letter to the editor’, published in the Daily Express of 8/6/17, by Dr Emir Crowne.

The writer has made two fundamental flaws in his thinking that – given his impressive qualifications and experience – are almost unforgivable.

First, there is the implied condition that the Chief Justice is an ordinary judge, and that it is wrong to remove him from his position. By implying this condition, Crowne is conflating the position of the Chief Justice with the position of the Chairman of the Judicial and Legal Services Commission. While they may be the same person, and that person is the Chairman because he is the Chief Justice, they are two separate offices. They both serve different functions, and in no way should be conflated or confused with the other. This is quite an elementary mistake and makes it quite obvious that if you start an argument from a false premise, you will never arrive at a true answer. Obviously, there’s a lot more I can write on this but I leave it up to readers to do their own research.

Second, there is the other elementary mistake of ascribing political motives to legal actions. There is a prima facie case of the JLSC being unconstitutionally constituted. Several reasons have been brought up in the public domain for this, one of which is that two of the retired judges are over the prescribed age (http://bit.ly/2sGkbGU).

Cases are assigned to judges arbitrarily, and if two cases are linked they assigned to the same judge (paragraphs 6 – 12 here: http://bit.ly/2sRW9rD). Implying that the judge is politically motivated to find in favour of the Opposition is almost contempt of court. It is impugning the character and reputation of the judge. Crowne ought to know better.

Sadly, their very independence means that judges are not able to comment in public regarding any matters, not even to defend themselves. They cannot even be seen to be biased in any manner (remember Sherman McNicolls and the Panday matter?). While a judge is entitled to vote, for example, he cannot be seen to be allied with any political party, neither can he even comment on which party he supports.

I want to address the issue of the bar attacking the judiciary. The bar has in no way attacked the judiciary but has expressed reservations in the conduct of the Chairman of the JLSC (who happens to be the Chief Justice). The fact that the Chairman, the JLSC and indeed the Chief Justice did not conduct due diligence in the matters that brought the judiciary into disrepute is indeed casting a stain upon the JLSC and the office of its chairman, and the office of the Chief Justice. You will notice that I have treated them as separate entities, which indeed they are. The bar was and is entitled to hold its titular head to account.

I also want to address the issue of “select group of lawyers”, which the writer has used to imply that such a group of lawyers is politically motivated… apparently consistently. I personally do not see it this way – and before I continue, I confess I hold no brief for these lawyers, and in most cases personally dislike them – but what I see is a group of lawyers who are willing to stand up for constitutional defence. Many of these lawyers have built their reputations on constitutional and human rights grounds, so it is no surprise therefore that anyone with complaints in these areas will seek them out. The fact that they are aligned with one particular political party may or may not be coincidence but that is certainly their right. In the same manner, there are lawyers are aligned with the other political party, but no one seems to notice.

The point I am trying to make is that these lawyers are making important changes to the law, especially where the administrative arm of the government is abusing its powers. Crowne of all people should appreciate the balance of the separation of powers and the rule of law. the rule of law is a concept many people do not understand even after many years of legal experience, and sadly, I see here that Crowne falls into that bracket.

My final point is that anyone/everyone has the right to stop abuse of power, constitutional shenanigans, and blatant disregard for the law/rule of law, as can be seen from the recent Privy Council judgement in favour of R Dumas.

Keep in mind the final arbiter will be the Privy Council. By then, the web will be significantly more tangled, as if the PC does rule the JLSC is unconstitutional, how then could it justify appointing new judges? The common-sense answer would be to have waited for that final decision.

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