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.

9 May 2017

Constitutional flim-flams

There are 3 constitutional crises facing the Trinidad and Tobago right now. The crises are:

  1. The Marcia Ayers-Caesar infamous promotion to the judicial bench.
  2. The possible illegality of the Judicial and Legal Services Commission (JLSC).
  3. The possible illegality of the Police Services Commission (PSC).

I will deal with them in order listed.

Ayers-Caesar is the former Chief Magistrate (CM), a post held in the past by another infamous and less-than-honourable son of the soil, Sherman McNicolls. Search for on this website Shermie and you will find loads of shenanigans he was involved in. It must be something in the office that affects the head (and possibly wallets) of the office holders. In any event, we have a situation where the CM was promoted to the High Court and left some 54 outstanding cases behind, all of which may have to be restarted from the beginning. This pissed of those charged in these matters, and a riot occurred in the jail cells downstairs from the court which resulted in some police/prison officers (I forget which) being hurt. Of course, they can now sue the State (using the copy and paste master, Gerald Ramdeen for a sure win) for failing to provide a safe working environment (and that’s only for starters!).

But Ayers-Caesar is expected to go back to the position of the Chief Magistrate, toppling her replacement who can now sue the State because she has/had a ‘legitimate expectation’ to the post she was promoted to. And, if that is not all, the Chief Justice (CJ) claims Ayers-Caesar never resigned as CM. What?! I’ve never known someone having to resign from one position, within the same organisation, to take up a higher post in the same organisation. Did I miss something? Now we have a whole bunch of questions jumping out at the CJ and JLSC, the latter making the appointment by the way.

  • If Ayers-Caesar didn’t resign, was she collecting salaries as both CM and a judge?
  • Did Ayers-Caesar’s replacement know she wasn’t really promoted and so has no legitimate expectation to either job or salary?
  • Why was there no due diligence checks?
  • Did she sit in hearing for any cases at the High Court? What happens to those matters?

You see? All kind of questions come to my mind, and I am sure the public (and legal fraternity) has thought up a lot more.

Which brings me to the JLSC. If it is illegal as purported, then this whole episode is a mere speck in the judicial pond. Immediately coming to mind is that Ayers-Caesar appointment would be illegal, as would her replacement’s… and so would any appointments made during the period of illegality!! How so, you ask. Well, an illegal entity can’t appoint a legal entity. Simple. What is illegal can’t make the illegal legal. Now look how this spreads:

Every single appointment would have to be declared void (more lawsuits) and all monies paid by way of salaries and perks would have to be recovered. Like throwing back the cascadoo yuh done eat back in the pond. Hundreds of appointments in the most part, I suspect. And we haven’t even begun to think about the cases those so appointed have been involved in. Can you imagine a few thousands of prisoners realising that the magistrate or judge who heard their case is not legally appointed to do so? What about those who were/are sentenced to prisons or even fines? I see floodgates opening for lawsuits and a mess worse that the sewage dumped in Queen’s Park Savannah.

Same situation for the PSC.

I hope readers now see better how this constitutional gobar (cow dung) is important to be washed, dried and deodorised quickly… I really hope so.

Before I forget… those of you who are wondering why magistrates and judges aren’t commenting ought to know that they can’t. They have to remain impartial in both private as well as public life. Sad, isn’t it? They can neither complain, nor defend themselves.

4 May 2017

Is A Long Time

Is a long time I eh write ah blog post here. Is not that shit eh happening, is de opposite – it happening too farse and furious fuh meh to keep up. Not only dat doh, I have exams coming up and de amount ah reading getting heavier. Imagine having to read 11 chapters fuh one piddling assignment that only 1500 words.

Buh back tuh meh thoughts on shit happening farse and furious… it never stop really so it eh have have no parts 1 tuh 8 here. Is one continuous line ah shit like ah waste truck pumping out ah latrine. De amount ah meh thoughts ah had was tuh rubbish, jess tuh keep sane. Some like ah fishbone in meh craw doh.

Ah mean, ah still cyah get over de fact dat de Opposition Leader SC (I realise it really mean someting like Stupid Cow if ah being polite) insisting dat de property tax forms ‘illegal’:

“I am a lawyer, but I have consulted with other lawyers and we have gone through the Valuation Land Act and we have gone through the Property Tax Act and it is very clear that this form, is null and void.”

Ah mean, dotishness come in all shape and form but dis ‘oman is in a league of her own.

Leh we eh forget another UNC blowhard. Search this site for ‘The case of the Walking documents’ and yuh go find Gerald Ramdeen name coming up. Ah man who in de middle ah all kinda corruption probe actually get pick by the UNC to be part ah de team in de Senate.

And leh we eh forget dis fiasco with the promotion/demotion of the former Chief Magistrate (CM). First dey telling we she resigned as CM tuh be a judge, den she resign as a judge tuh go back tuh being CM, allegedly tuh finish outstanding matters. Den we are told she cyar go back as she resigned being CM. Since dat go put de cases she was hearing, de Judiciary, de Chief Justice, de Judicial and Legal Services Commission (JLSC) not tuh mention de ‘reputations’ of all de aforementioned in real monkey pants; dey decided dat fuh de purposes of getting her back tuh de magistracy she didn’ really resign as de CM.

Dis is where de logic fall frickin’ dong. So, fuh de 2 weeks she was ah judge, she was collecting 2 salary?! One as CM and one as a judge? Dat is like being Prime Minister and Leader of de Opposition at de same time. Yuh see how frickin’ dotish dat is?

Israel Khan right… like toxins take over …

Buh yuh know what de saddest part ah all dis is? De people eh care. Dat is why all dis going on and dey will continue to misuse de law. Is obvious dem dong dey eh even know what de rule of law is, or how it applies tuh dem.

25 Apr 2017

Gone and forgotten

This bears repeating:

A caller to a radio programme last week suggested there is the danger that we could kill the messenger without hearing his message. He was commenting on the demands made by Opposition Senator Gerald Ramdeen that Chief Justice Ivor Archie, as chairman of the Judicial and Legal Service Commission, release all the information on the recent appointments of three judges to the High Court.

The caller suggested further that Senator Ramdeen’s demands be examined fully, that they should be seen in a wider context of our time—when our institutions appear to be falling apart and the credibility of office holders is being questioned publicly.

I found merit in the caller’s suggestion, so I re-examined the recent call by Ancel Roget, president general of the Oilfields Workers Trade Union, to BP to “take your platform and go” and the statements of Watson Duke, president of the Public Service Association, during his call for a “Day of Resistance”.

I fitted both statements into the context of our time, and the results were the same: I concluded that Mr Roget needs to be enlightened about the realities of T&T in the 21st century, and Mr Duke, a crude, showy brawler, is best suited for a Randy Glasgow’s comedy special.

To review Senator Ramdeen’s message we should begin with the February 2014 High Court matter between his client, Jamal Sambury, and the attorney general before Master Patricia Sobion-Awai in which she declared herself “satisfied that substantial portions of the claimant’s witness statement had been lifted from other witness statements in an attempt to mislead the court.”

She noted “the similarities” between Jamal Sambury’s witness statement and that of Jamal Fortune in a previous case (CV 2009-3296), describing them as “so striking that the only reasonable conclusion was one was copied from the other”. She recorded her concerns and called for an investigation to prevent further abuses.

Later in the Appeal Court Senator Ramdeen, instructed by Varun Debideen, appeared before Justices Mendonca, Smith and Rajnauth-Lee. Court documents revealed that attorney Lee Merry, appearing for the AG, reminded the court of Master Sobion-Awai’s conclusion that “the conduct of the litigation was dishonest and an abuse of process.”

Justice Mendonca observed that Master Sobion-Awai wrote “it was a plagiarism from somebody else’s witness statement”, to which Merry responded that in such an instance the main form of deterrence was imprisonment for contempt.

This copying and pasting of evidence became known as “Prisongate”. In May 2014, Chief Justice Archie instructed that the matter be referred to DPP Roger Gaspard, who said in a media release that the matter warranted a criminal investigation. That July, Debideen attempted to introduce an explanation to Master Sobion-Awai but it was denied. In October, ACP Donald Denoon told the Sunday Express that several attorneys were interviewed and he expected the matter “to be concluded soon”. It is still ongoing.

The context widens in November 2010 when one considers the case, known as “The Walking Files”, in which attorney Mark Seepersad reported to the High Court that he shared office space with Ramdeen. On Ramdeen’s departure, he discovered in the office confidential High Court documents and personal belongings of one Asha Harripaul, at the time a judicial support officer.

The judiciary reported the matter to the police. Investigator Sgt Guevarro submitted a report in May 2011, detailing responses from Seepersad. It was concluded then that matter did not warrant further investigation.

After a Sunday Express expose in 2015 Seepersad said he was never interviewed. Acting Police Commissioner Stephen Williams then directed ACP Simon Lendor to re-open the matter. Senator Ramdeen claimed that he was questioned by the police, but no mention was made of the “Walking Files”. The investigation continues.

The context widens further, involving prisoner Michael Bullock, a former client of Senator Ramdeen. In February 2009, Master Paray-Durity made an award to Bullock, but in December 2001 that same year, unknown to Bullock, the monies were deposited into Senator Ramdeen’s account. Bullock wrote to the AG and Law Association. Last February, eight years later, the senator paid Bullock $407,000. The Anti-Corruption Investigations Bureau continues its work.

Both Ramdeen and Debideen came in for severe criticisms from Sir Anthony Coleman, chairman of the Commission of Enquiry into Clico, who blamed them for the delays in that matter. Last year, Attorney General Faris Al-Rawi revealed that Senator Ramdeen’s State briefs under the People’s Partnership government, totalled some $36 million; the Senator responded, giving up all his State briefs.

A still wider context? Should any of these matters go before the new judges will Senator Ramdeen be shouting “victimisation”?

Keith Subero is a veteran journalist

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