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…

16 Jul 2019

Rowley’s duty to act on CJ issue

I am glad Israel Rajah-Khan is keeping alive, the issue of the Chief Justice’s (CJ) alleged misbehaviour in office and the Prime Minister’s (PM) silence in that matter. It is not surprising that the PM is silent though. Allegations have since turned up that he was personally involved in the same mess at the same time as the CJ. To probe the CJ might well be shooting himself.

Legally, it appears that the PM has no choice but to refer the matter to the President for a tribunal to be appointed to carry out the enquiry. But as in all Third World countries, leaders play at leading and don’t fully understand that they are no longer petulant school boys. It is why the various governments play at following the Westminster parliamentary system.

In R v Secretary of State for the Home Department ex parte Fire Brigades Union (1995), the court ruled that the relevant minister could not fetter himself by not exercising his discretion to follow the law. So too in Padfield v Minister of Agriculture, Fisheries and Food (1968). Further, the Judicial Committee of the Privy Council (JCPC) in Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago) [2006] UKPC 57, at paragraph 27 Lord Bingham clearly says:

“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].

Once cannot help but wonder had the CJ been of a different ethnicity would the PM had already triggered section 137? The PNM certainly went after Sat Sharma with all the enthusiasm of a Rottweiler going after a roti.

The true power in section 137 of the Constitution is not that the PM has the authority not to act, but that he MUST act and let the chips fall where they may. Once the CJ’s matter was referred to him, his duty was clear. Even if the PM does not want to act, he must give reasons why and those reasons should be rooted in law: Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014.

But in the Third World country that is Trinidad, anything can happen and usually does. I can only hope someone takes this through a judicial review and clarify the legal duty of the PM, once and for all.

19 Apr 2019

More questions than answers

There are several matters that are on my mind following recent reports in the local newspapers.

  1. After seeing a report about a “fake police station” and the ‘prisoners’ therein, my thoughts went to the healthy (or unhealthy, depending on your point of view) relationship between the police and Venezuelan/Columbian females, going back decades. One can only guess why raids on brothels require police to wear masks… afraid of being identified as clients by the arrestees? I also noticed that the numerous past reports indicate that it is mainly police officers who have these women as ‘guests’ in their homes.
  2. The ‘Wealth Bill’ is another matter that gives me unease. Despite ‘reassurances’ by the Attorney General, there has never been a law enacted that has never been abused when the potential to do so is there. In other words, the potential for abuse is a certainty of abuse. Every time. Often in creative ways.
  3. The Prime Minister, and indirectly the President, are sitting on their hands with respect to the most important Constitutional issue (arguably) in the entire history of the country since Independence from England. I refer to the matter of the Chief Justice (CJ) who has allegations against him amounting to serious misconduct in office if they are true. There is a duty, both legally and morally, for the Prime Minister to trigger an investigation via section 137 of the Constitution, by referring the matter to the President for an independent tribunal to carry out a proper investigation.

Instead, we have now become the only country in the entire history of the Commonwealth, to be in this position. But oh, how swift was the PNM in making the same type of recommendation against Sat Sharma, a former ‘Indian’ CJ, when there were allegations against him! This surely makes race a factor in the apathy of the Prime Minister.

But let’s put race aside. Can it be that the Prime Minister is afraid of being caught in a sting regarding the issue of cavorting with the CJ? The present CJ acknowledges that he approached the PM to influence the Trinidad & Tobago Housing Development Corporation (HDC), an Agency of the Ministry of Housing & Urban Development, and which the Prime Minster was formerly in charge of under the Manning stewardship. What else would an investigation reveal? That seems to be the million-dollar question.

  1. The pace of murders occurring is accelerating. The ability of the police to detect and solve these is decelerating. And apparently, never the twain shall meet…

Can we get answers from those in charge please?

6 Apr 2019

Common sense and transparency

The case of Jamaicans for Justice v Police Service Commission & Anor (Jamaica) [2019] UKPC 12, decided on March 25, 2019 at the Privy Council (PC) has very strong lessons for Trinidad and Tobago. It is directly related to issues of , and has bearing on the reluctance of President Paula Mae Weekes to divulge information on the selection process and the names of judges selected for higher office. It is also applicable where police officers are to be appointed/promoted when they have charges (accusations) against them.

The case (found at http://www.bailii.org/uk/cases/UKPC/2019/12.html) is summarised below, adapted from the judgment:

“The issue in this case is what steps the (Jamaican) Police Service Commission (PSC), which is charged with deciding upon the appointment and promotion of police officers, should take to inform itself about officers recommended for promotion who have been involved in fatal incidents before making its decisions. In particular, is there a duty to ensure that allegations of extra-judicial killings against such an officer are fully and independently investigated before accepting a recommendation that he be promoted?

Jamaicans for Justice (“JJ”) is anon-governmental, non-partisan human rights organisation. It challenged the PSC on the promotion of police officer Superintendent Hewitt under the grounds that there were complaints of unprofessional conduct against Superintendent Hewitt, including complaints of fatal shootings by officers under his command.

The purpose of setting up the (Police Service Commission) PSC, along with the other public service commissions provided for in the Constitution, is to insulate the Jamaica Constabulary Force (JCF) (and other public office holders) from political influence (Thomas v Attorney General of Trinidad and Tobago [1982] AC 113). [This is directly applicable to Trinidad and Tobago as well.]

The PC (called “the Board”) in the judgment noted the following:

  • While the level of serious violent crime in some parts of Jamaica was a grave concern, there was also a grave concern, both nationally and internationally, that the police, or some members of the JCF, were overly inclined to take the law into their own hands in dealing with it, thus risking violations of the right to life, to due process of the law and to equality before the law of the people involved. Superintendent Hewitt was involved, as team leader, in a large number of fatal incidents. No independent investigation of these incidents had taken place. Such an investigation might reveal a different picture from the very summary table of incidents with which the PSC had been provided. It would serve to put the statements of the Commissioner, and of Superintendent Hewitt himself, as to his effectiveness in fighting crime, into context. The final decision would still be that of the PSC, but there was a reasonable prospect that a properly informed PSC might have made a different decision.”

The Privy Council found in favour of Jamaicans for Justice. In other words, there is a duty to fully and independently investigate a police officer whose behaviour has been questionable in the line of duty, before deciding to promote him.

Now apply that principle to the Trinidad and Tobago Police Service (“TTPS”), the Police Complaints Authority, and Gary ‘one-shot, one kill’ Griffith. And to the President denying access to information regarding the (secretive) selection of judges – where is the transparency? Can the public be really certain that the persons so selected do not have cause for investigations into their backgrounds? Lack of transparency led to inappropriate appointments to the Integrity Commission, Police Service Commission, the Judicial and Legal Services Commission, the Judiciary… And I can go on and on…

It takes the Privy Council to direct officeholders into following what ought to be common sense.