5 Aug 2018

Crime rising

Crime is on the rise (Stephen Williams Ag CoP, Express 12 Jan 2017). It has been rising steadily for the past 10 years despite the ‘reassurances’ of police and politicians who provide statistics to show that there are occasional decreases in numbers, in various categories. These decreases are temporary ‘blips’ in the overall picture, which, if charted by an unbiased observer, clearly shows the rising crime numbers as well as the rising crime rate.

I suppose that many persons have given up on the lesser impact crimes, such as the numbers of speeding and parking tickets – and fines- issued. What is foremost on peoples’ minds are the more serious crimes, involving violence and loss of life with, sadly, often gruesome acts perpetrated on the victims. One can only wonder whether the perpetrators have reverted to baser animal instincts, rather than higher human cognitive capabilities. When you think of it, even animals aren’t as depraved as some of these perps.

Perhaps the hardest fact to digest is the utter incapacity of the law enforcement services to get a grip on crime fighting… whether that grip is to be crime prevention or crime investigation, failure is an abysmal fact staring us in the face. Add to this failure, the inability of the judicial system, itself under a tsunami of criticisms of its own making, to cope with the rare arrest and one can see why hope of change is but as likely as a former President repaying an illicit housing allowance.

Extending this idea further… With a detection and arrest record in serious crimes at less than 10%, but a trial timeframe in the judicial system (mess?) taking between 5 to 15 years currently, what would happen if that detection rate was to increase to – let’s speculate here – 80%? If you think the Pratt & Morgan 5 years’ time-limit is impossible now…

A recipe for anarchy, I imagine. Faeces might be the least offensive item thrown at judicial officers (Newsday 22 Nov, 2007). As to the regular baying for blood, everyone forgets that before there is a hanging or public execution, one must first catch and verify the guilt of the perpetrator… sadly, this is near impossible with the current police membership, especially considering the inept standards of thinking and performance.

Some detractors might question my loyalty to the country… this is a red herring. Criticism does not mean disloyalty. Only a fool will ignore the obvious. Other detractors will want to know why I am not suggesting improvements. A short-sighted view without the benefit of research, as I have done exactly that on many occasions.

1 Aug 2018

What did Gary do wrong?

I am not sure what are the objections to Gary Griffith being appointed Commissioner of Police… as far I can see, the objections verbalised in the newspapers are merely rantings of small minds. The best reasons for appointing him are, (i) he qualified according to the procedure adopted (and agreed by both political parties) subsequent to the Gibbs and Ewatski appointments, (ii) the country needs something radically different to combat the crime tsunami. Of course, there are myriads of other reasons, but these are the 2 most important.

With respect to the TTPS union and the position of non-cooperation if Griffith is appointed, this position is the very definition of stupidity. First of all, the job of selecting a Commissioner of Police is solely in the domain of the Police Services Commission (PSC). For police officers to refuse accepting the legal and valid appointment is to trespass on the domain of the PSC. There is no ifs and buts about it.

Further, if I were Griffith, any non-cooperation would be viewed as misconduct in office and failure to obey orders would be deemed gross misconduct. Dismissal would follow soon after. If the entire First Division, banking on seniority and experience, were to object then the entire lot would be dismissed. The crime situation is bad enough that we do not need further stumbling blocks on the journey to recovery. It is imperative that everyone cooperate with each other, and if this is not happening then the obstacles must be removed. That is just common sense.

I look forward to seeing major changes, soon.

29 Jul 2018

Who can’t help but love the law, eh?

2018-07-29_08-39-06Chief Justice Ivor Archie is like a salmon swimming against the current. With a bear (or other predator) waiting upstream.

Archie is an untenable position, but it seems he alone does not know it. Or at least, he chooses to ignore it, using the defence, “Might is right”.

Not only has Archie admitted to using his position as Chief Justice of Trinidad and Tobago (CJ) to influence the award of housing to persons, the persons so recommended for housing were convicted felons, who continued to breach the law, only they did so by using the name of the CJ – and by extension his Office! – to mislead people in furtherance of their fraudulent activities.

Be very much aware: Archie admitted publicly that he used his Office to gain favours for his friends. That was, and is, the core issue. Guilt, as far as I am concerned, was admitted. All is left is the sentence, to keep the judicial analogy.

Obviously, there is a great deal wrong with the above scenario, of convicted fraudsters using the Office and relationships with the CJ to further scam/fleece the public. Any right-thinking person would immediately see the breach of ethical responsibility of the CJ.

“His conduct was perfectly odious—that is, to any right-thinking person.”

The above quote by John Conroy Hutcheson, is apt to the occasion, don’t you think?

But Archie’s ‘might is right’ doctrine holds, as at least on 2 separate occasions he has used his position and Office as ‘administrative head’ of the Judiciary to issue press releases in defence of himself for breaches of law and ethical conduct, made in his private capacity.

Another question, superbly referred to by Justice Seepersad and one which I wondered myself, is who is footing the legal bill for the CJ all the way to the Privy Council? Are his Counsels (Ian Benjamin, for one) being paid by the Archie the private citizen, or by the Office of the CJ? Perhaps Benjamin should answer; I dare say that revealing the source of the payments would not be a breach of client/attorney privilege, as it does not require divulging any details of the matter at hand.

I for one, eagerly await the judgment of the Privy Council, but I am aware that the judgment is merely the first stepping stone… it is only to determine whether the CJ can be investigated by the Law Association (LATT) with a view to determine whether a recommendation can be made to the Prime Minister (step 2) to refer the matter to the President (step 3) to set up a tribunal (step 3) to investigate the CJ (step 4).

Who can’t help but love the law, eh?

What then, is the solution to all this? If the Prime Minister stops diddling with himself, obviously.

Had the Prime Minister, (let's call him Rowley, for simplicity's sake) triggered section 137 of the Constitution, then all this matter would have been addressed, and put behind us by this time. Rowley's dithering in this matter is the primary reason that this issue is going on so long, and making Trinidad and Tobago the laughingstock of the Commonwealth, and indeed, the whole world.

Readers may want to research 'fettering of discretion'. In short, this is where someone has a discretion granted in law, but refuses to use it, or uses it incorrectly.

Note that Rowley has no physical or legal impediment stopping him from referring the matter to the President, thus triggering section 137. Therefore, one can only infer that the impediment is psychological (mental). Referring the matter to the President for setting up a tribunal to investigate the Chief Justice does not imply guilt on the part of the latter. Rather, it is to determine guilt – or innocence – and one way or the other, the matter would be settled. Short, sweet and simple.

Personally, I cannot see where or what the Chief Justice has to gain by staying in office, neither can I see where or what the Prime Minister has to gain by keeping him there. Whatever it is, it must be so important that they are willingly bringing the Judiciary, the Government, and the country into disrepute.

Who can’t help but love the law, eh?

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.