1 Mar 2019

Liquid paper President

If the Newsday is correct in reporting [Newsday 28/02/2019] that President Weekes “is proposing to the Judicial and Legal Service Commission (JLSC) to revoke the appointment of Appeal Court judge Charmaine Pemberton” and “re-appointed under the correct provision: section 110(3) (a)”, one can only wonder whether the President thinks that this is sufficient to correct the constitutional chaos caused by the appointment.

It seems that the President is glossing over the fact that Justice Pemberton was illegally appointed, and took part in decision-making during this time, decisions which in themselves would be illegal if she formed part of the quorum as required by law. The shambles which the country and the judiciary find itself is not so easily solved. What of the appointments made to the judicial bench by the JLSC? And the flowing from those, what of all those convictions and sentences passed by those appointees?

It is perhaps the Trinidadian way to think that simply “firing” and “rehiring” Justice Pemberton would solve the problem. All that is doing is putting a coat of paint on a sadly battered fence, to use a Mark Twain analogy. Or, more aptly in this case, a dab of ‘Liquid Paper’ over a ‘b’ to change it to an ‘a’. That merely resolves the problem of the appointment from this point onward, while the rot that started in 2017 with the original ‘appointment’ remains.

The liquid paper President ironically writes to propose a solution to the very body that is illegal! Does she need the approval of the JLSC to make the changes? Imagine a judge asking a convicted felon, “I’m suggesting I sentence you to the death penalty, do you approve?”

The situation is not merely farcical, it’s a downright upright middle finger to the entire country! And, don’t forget the proposal to reappoint Justice Pemberton again points that middle finger at the more senior judges who also qualified for the post.

What I understand further is that in Trinidad, power – perceived power – is held on to at all costs. It is why Justice Pemberton, like so many others, does not have the shame to resign, but is waiting for the ignominy of being ‘fired’. It would have been simple for her to resign following the Privy Council (PC) judgment, but that is not the Trini way, is it?

Or, maybe she sees that a resignation letter is too much to liquid paper over.

24 Feb 2019

Weekes weak week

I note with some amusement that President Weekes ‘suddenly discovered’ an error was made in the paperwork leading up to the appointment of Judge Charmaine Pemberton as a member of the Judicial and Legal Service Commission (JLSC).

“She explained what the error was: “While the relevant instrument of appointment indeed indicated that the Honourable Justice had been appointed, in accordance with the provisions of paragraph (b) of subsection (3) of section 110 of the Constitution, the letters of consultation to the Prime Minister and the Leader of the Opposition dated 21st July, 2017, and which preceded the appointment, referred to section 110 (3) (a).”” [Newsday 23/02/2019]

Being an irreverent and sceptical criticiser of political figures, I now have to ask if the following persons were asleep during the last few years this matter was winding its way through the courts?

  1. The Prime Minister
  2. The Opposition Leader
  3. The ex-President
  4. The current President
  5. The Chairman of the JLSC/Chief Justice

A whole team of knowledgeable lawyers took this all the way to the Judicial Committee of the Privy Council (PC) and no one ‘discovered’ the error until now? I for one believe that when the case was researched for presenting through the High Court, the Court of Appeal, and finally the Privy Council, any genuine error would have been unearthed. Not that it matters.

Justice Pemberton remains illegally appointed. It matters not what the “letters of consultation to the Prime Minister and the Leader of the Opposition” say. The fact that her appointment was made under s110(3)(b) in her ‘instrument of appointment’ clearly makes it illegal (ultra vires or ‘outside the law’) when it was made, and still remains so.

The sceptic in me tends to believe that a bit of jiggery-pokery is being done to save the face of Justice Pemberton, and/or Presidents Carmona and Weekes. Not to mention avoid a constitutional mess where appointments made by the JLSC could be considered null and therefore prisoners could challenge convictions and sentences from those who were appointed to the bench during this period.

An illegal appointment can’t be ‘redressed’ by and as President Weekes would have us believe. That appointment was ‘frozen in time’ when it was made years ago and now any redress lies outside the powers the President thinks she has.

For those who wonder why I am making a big deal out of this, I ask you to consider that decisions made by an illegal JLSC would themselves be illegal. So, any judge appointed by an illegal JLSC is not legally sitting in office, and all of his sentences and decisions are up for review. This is the constitutional mess the country finds itself in.

9 Dec 2018

A question of integrity

What, pray tell, is integrity? For most of us, it is the idea of having a strong moral position, a conscious choice to be honest, upright, and most importantly, the ability to resist temptation to use positions of influence and power for personal gain, or the gain of friends and family.

Sadly, my observations – which I have documented in case proof was needed – for the past 10 years or so indicates that integrity is sadly lacking within the PNM fold. Let me step aside here for a moment: that statement, particularly the acronym ‘PNM’ will certainly raise the hackles of people on two fronts – racism, and political division between ‘Indians’ and ‘Afros’ – but that is the nature of the beast. Hopefully, some will settle down to read further where explain my position. And note this sentence carefully: this does not mean that I approve of or that I have not observed the same with other political parties!

My introduction to integrity within the PNM started with the Rowley saga of Landate. From all accounts in the public domain – which I will not rehash – there appeared to be a prima facie case of loss (or lack) of integrity on the part of Rowley with regard to materials to be used for a hospital project ending up at a private building project.

Still sticking with the team of integrity, the then Integrity Commission rejected the idea of procedural integrity and did not give the then minister an opportunity to be heard. This is a breach of the natural rules of justice, and so, the matter was dropped, and the entire Integrity Commission was forced to resign.

Another incident involved Stone Capital, and Andre Monteil and the Home Mortgage Bank. Don’t forget:

  • Monteil was treasurer of the PNM
  • Monteil was the group financial director of CL Financial, the parent company of Clico and the chairman of Clico Investment Bank.
  • The shares were initially Clico's.
  • The sale was facilitated by a 2007 amendment to the Home Mortgage Bank Act (coincidently passed by a PNM administration).
  • Clico provided the funds to Monteil to purchase its shares for himself.

    Joan Yuille-Williams gave out some $46 million over a period of four years, in secret scholarships (non-advertised). Lest readers forget, I point out the following:

    • A beneficiary to the tune of $500,000 worth was Laurel Lezama, daughter-in-law of Louis lee Sing, PNM financier and politician.
    • No record is available on whether that “scholarship” was ever repaid.

      In the Express of April 15, 2010 there was a picture of Port of Spain South MP Marlene McDonald giving away cheques to her constituents. Whose money was that?

      Don’t forget, in questions on integrity arose when it was revealed that Marlene McDonald’s common-law ‘husband’ Michael Carew was granted an HDC house by Marlene using her influence. Mr Carew and his brother were also beneficiaries of grants from the ministry headed by Marlene McDonald. Integrity it seems fell to the wayside.

      And today’s Newsday once again has Marlene McDonald proving once more that she does not know what integrity means (09/12/2018 – https://newsday.co.tt/2018/12/09/i-protect-my-friends/).

      “The man has worked under three ministries led by McDonald since she entered politics in 2007. He began in the ministry of community development, culture and gender affairs. From 2007-2010, McDonald was the minister in charge of that ministry. Following the 2015 general election, McDonald was appointed housing minister and it was then the “nice man” was hired at the People’s Issues Resolution Co-ordinating Unit (PIRCU) at the housing ministry.”

      As always, what I have written above can be easily found in the public domain; I am a scribe collecting and collating.

      Readers may wonder why I pay so much attention to integrity, honesty, ethics et cetera. After all, aren’t lawyers supposed to be bereft of these qualities? Perhaps it is my own personal make up that keeps me alive to these issues. Perhaps it is because within legal training there is a lot of philosophy, ethics and integrity. I would like to think that I will not lose this perspective. Whenever I feel myself falling short, I hope I am reminded to revisit my online postings and realign my moral compass.

      28 Oct 2018

      The difference is clear

      Image result for singaporeI am tired of all the whinging excuses made by those in authority… From Prime Minister to local government councillors, from CEOs to the lowest managers, everyone seems to be passing the buck. Administration after administration on the governmental level have heaped upon our heads, excuses upon excuses for failure to deliver. Take for example, the abysmal and annually repeated flooding…

      This could have been fixed decades ago. But no administration wanted to be the heavy hand that smites discipline, that attempts to change the culture of apathy, “gimme gimme”, feting and carnival mentality, and just plain laziness.

      A simple comparison: another island/city state achieved independence from the British Raj in a few years after Trinidad and Tobago. This state lies a mere 1° north of the equator – so it is similar in climate to Trinidad and Tobago. It is 1/7 the size of Trinidad and Tobago, lacking the natural resources that Trinidad and Tobago has in abundance.

      Within one generation, roughly 30 years, this state became a first world sovereign nation. Not only that, it is the only country in Asia and one of 11 worldwide with a ‘AAA’ rating. It is a global hub for education, entertainment, finance, healthcare, human capital, innovation, logistics, manufacturing, technology, tourism, trade, and transport. It ranks highly in numerous international rankings, and has been recognized as the most "technology-ready" nation (WEF), top International-meetings city (UIA), city with "best investment potential" (BERI), world's smartest city, world's safest country, third-most competitive country, third-largest foreign exchange market, third-largest financial centre, third-largest oil refining and trading centre, fifth-most innovative country, and the second-busiest container port, and the most expensive city to live in, since 2013. [Wikipedia]

      The place I describe is none other than Singapore.

      The difference is of course due to leadership with vision, determination, and the political will to get things done. Coupled with enforcement of the law, Singapore far outstrips Trinidad and Tobago, which lags so far behind that one cannot even make a comparison.

      Perhaps in another 200 years…

      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.