11 May 2018

Why law?

udhr

It is quite common to hear expressions such as, “That is my right!”, “I have the right to [insert comment of choice here, such as ‘free speech’]”, “I have the right to privacy”, and so forth. So, to those who frequently trot out this phrase, I ask this question:

“What is a right?”

How many readers can answer that question? How many will have to turn to Google, or use a legal dictionary? Where do rights come from? Rights are such a fundamental thing; everybody has them, governments and courts must respect them, yet the percentage of people who can answer that question is very small.

As a person pursuing an LLB in law, I admit that I find law to be a fascinating subject. I also admit not everyone will. My purpose for writing this column though, is not to “teach” law to the readers of this website/column. What I hope to achieve is to provide some clarification of how the law works as related to issues that we see in the news daily. Far too often, the layman does not understand the concepts and principles behind the law, and there is a public outrage when behaviour does not conform to what we perceive as being “fair”. It’s the nonsensical opinions that are promulgated that stoke anger, racial hatred and other intolerance.

Before embarking on my law journey, I was one of the blissfully ignorant. Ignorant because I did not know, and blissful because my ignorance permitted me to expound views on matters I did not understand… much like many persons today. We see it daily in letters to the editors of newspapers, and contributions to online forums and even in complaints when we feel aggrieved. Later, in a subsequent column, I will come to the ‘invincible ignorant’, and how they differ from the ‘mere’ ignorant.

Law is evolutionary. It evolves in small increments as society sees fit. At the heart of the law lies the principles of fairness, justice, equity, and equality but also principles of punishment and deterrence for wrongdoing – to prevent harm to others. Law is a method of social control, clamping down on aberrant behaviour that bring harm to others and where harm has occurred, it punishes the perpetrator and tries to compensate the victim adequately and fairly.

Law is based around the society. The truth of this statement can be seen from the different legal systems around the world, which are influenced by culture and religion, as well as political agendas. In the following questions, I use the word ‘right’ to mean whether we think it is fair and ethical. By which/whose yardstick do we measure ‘rightness’ or ‘wrongness’?

Is it right to bury persons to the neck and throw stones at the head until they are dead? Is it right to throw a homosexual person off 12 storeys? Is it right to hang a person if there is a possibility that he is innocent? Is it right that the police can frame a person to satisfy crime statistics? Is it right that abortion is illegal/legal? Is it right for the Catholic Church to ban condom use while tens of thousands of deaths could be prevented by using a condom? Is it right for a man to ‘marry’ and have sex with a 12 years old girl?

To use another example, why do we need to drive at a certain speed? In the city of Birmingham where I live, which is nearly the size of Trinidad and Tobago, the speed limit is 20 mph. Practically everywhere! To get anywhere, one must leave early enough to cater for the speed limit, and traffic! Why? The answer is simple – “speed kills” was the reason provided for lowering the speed limit, which was passed without a whimper of a protest. I contrast this with what I saw when radar guns were being introduced in Trinidad and Tobago – loud protests to INCREASE the speed limit, despite the country having a motor vehicle incident death rate 43 times that of the UK. Go figure.

When we understand how the law works, we can understand the reasoning behind court judgments and recognise the logic and legal principles Judges use to arrive at their decisions. We can also understand matters of public policy, politics, arguments (not quarrels but rather units of critical thinking). We can understand the need for contracts and courts, we can understand what a crime is and why it is a crime. We can understand the need for laws and why we should obey the law, and what penalties apply if we don’t. We even understand why the penalty is what it is and whether it is fair.

When we understand how the law works, we will understand the “Pratt & Morgan” judgment, why the death penalty hasn’t ‘gone’ anywhere for the Government to ‘bring it back’, why the Anti-Gang Act will never work, why the police are a laughable lot, why the Integrity Commission is just another toothless watchdog, and why political progress in Trinidad and Tobago is a virtual impossibility. We will see that incorrect opinions are as plentiful as bamboo (aka 'donkey') grass, and critical thinking is a stranger to the political elite – Parliament. Most of all, we will understand when and how to express an opinion.

Oh, as for what is a right? I’ll leave you to work that one out.

8 May 2018

Domestic Violence

Domestic Violence. It’s like the air around us. It permeates everywhere and yet is not noticeable until there is some stench on it that brings awareness of its existence. Case in point, two police officers caught on video shooting at each other from point blank range… the backdrop of which is an alleged ‘love triangle’ which deteriorated into violence.

If the police going so far to try eliminating each other, can we hope that they will protect those of the public who need protection? Hardly. Last time, I wrote about a police officer telling a friend of mine that her brother, against whom she has a protection order, must breach the order three times before the police can act, or words to that effect (wtte). I thought that was an absurd position so I went investigating the Domestic Violence Act 1999 (the Act).

The Act is quite clear. Section 20 clearly states that a person who has an Order against him (I use the masculine to mean both male and female) and knows of the Order and contravenes the Order has committed an offence. No three-strikes rule there.

Section 21 directs a police officer

 “shall respond to every complaint or report alleging domestic violence whether or not the person making the complaint or the report is the victim”.

Quite clear, no funny ‘legal’ language here. And lo and behold, no three-strikes rule here either.

Section 23 makes the duty to act even plainer:

“For the avoidance of doubt, a police officer may act in accordance with the provisions of the Criminal Law Act where he has reasonable cause to believe that a person is engaging in or attempting to engage in conduct which amounts to physical violence and failure to act immediately may result in serious physical injury or death.”

Again, no three-strikes rule, only that the officer must have reasonable grounds to believe violence is a possibility. To err on the side of caution if you will…

Section 24 removes the need for applying for a warrant to arrest, expediting matters:

“Where an Order is in force and a police officer believes on reasonable grounds that a person has committed or is committing a breach of the Order he may detain and arrest that person without a warrant.”

Crikey, would you look at that? No three-strikes rule.

Schedule 1 of the Domestic Violence Act lists 49 actions, any of which – when committed by the person who is under an Order of the Court – will result in a breach of the Order. Therefore, an arrestable offence is committed. And nowhere in the First Schedule of the Domestic Violence Act, mentioning the Summary Offences Act, the Malicious Damage Act, the Offences Against the Person Act, the Children Act, the Sexual Offences Act, or the Criminal Justice Act is a three-strikes rule printed in law.

21 Apr 2018

Death from Domestic Violence

Violent deaths from spousal abuse are rampant in Trinidad. Beatings, choppings, stabbings, shootings are often given as the cause of death when the media reports on domestic situations tuned fatal.

On many occasions we are also informed that the victim had reported the abuser to the police and often there is also a restraining order to ‘protect’ the victim from the abuser. But the real cause of death isn’t merely the beatings, choppings, stabbings, shootings... it’s human stupidity. Hold on... I am NOT blaming the victim at all, or even the abuser, completely here. You see, the stupidity that (for the most part) leading to the fatality comes from the police.

For some reason, police officers are inherently far more stupid than the ‘regular’ members of society, yet think themselves more intelligent than the person next to them. We all can probably relate a story or two to verify this statement.

I’ll relate one to you now. Yesterday a friend from Trinidad called me; I am in England. This friend has a protection order against her brother who is increasingly becoming more volatile, and unpredictable. She went to the police to report yet another bout of threats and referred to the protection order.

The officer in charge of the station (I forgot what rank) clearly told her words to the effect (wtte): “Ma’am, we can’t do anything. He has to commit a breach of the protection order three (3) times before we can take action.” Those were the words my friend called about; to find out if that statement was true.

Huh? The sheer stupidity of that statement astounded me and left me speechless for a few minutes. I guess the police also watch people at traffic lights and only when a person ‘breaks’ the red light 3 times, then the first arrest is made. Or when a person is caught drunk driving 3 times, then the first arrest is made. Or when caught speeding... Now we know why crime rates are so high, ent?

It is a known ‘fact’ that police treat violent domestic situations with extremely poor policing. They simply do not know the law. Or have any sense. Or they just don’t care. Perhaps it is why the upper management of the police has no fixed ‘leader’ despite 13 ‘appointments’. Or why the current recommended CoP designate is under siege for unethical behaviour.

As public servants, police officers are paid whether they work or not. So whether the officer going out on patrol, investigating incidents or just sleeping in the police station, a salary is in his/her bank account at the end of the month. So people pay twice – in taxes, and blood!

3 Apr 2018

PNM: a cult

One cannot help but wonder at Rowley's ineffectual leadership. He is leading a ship whose crew is wayward, doing their own thing, and lacks the necessary discipline to work as a unit.

Say what you will about Kamla, and I pounded her endlessly for stupid decisions, she did the right thing - belatedly on some occasions - when she fired 16 Ministers for various ethical transgressions. Some of those transgressions might be considered 'minor' by the PNM standards, which are at an all-time low. One cannot help but compare the two styles of 'leadership'.

I will not be 'popular' for saying this but another difference I have observed is this: Under both UNC administrations, Panday's and Kamla's, there was corruption, which I disagreed with vociferously, but the country did gain many tangible and intangible benefits. Sadly, under the PNM, I am still looking, after nearly 3 years, to see what benefits the country gained. So far, the sea-bridge has collapsed, the crime rate is still going up, the police are still leaderless, the Sports ministry is a personal playground for a sex pest and many more... but money is being spent and certain people are getting richer.

The PNM is run along the lines of a closed cult, and what is inside stays inside.

20 Mar 2018

Letter to the Prime Minister of Trinidad and Tobago

Letter to the Prime Minister of Trinidad and Tobago,

Dr Keith Rowley

 

Dear Sir,

 

I am wondering where is my land of ‘milk and honey’ that I was promised by your PNM predecessor, the late Mr Patrick Manning. You have not delivered on Mr Manning’s promises to this nation. There is no tangible strategy for delivering to the people, ‘the land of milk and honey’. Instead, the country is in a perfect mess and well on a highway to hell! In effect the PNM has hoodwinked this nation.

 

I write to you with fervent hope that you use the powers of your respected Office to assist my beloved country rise above on at least one major crisis it is caught in presently. In this part of my letter, I refer to the sad, sorry spectacle of the Chief Justice hanging on to his Office by the proverbial fingernails tips.

 

May I point out some obvious facts to you? The Chief Justice holds not one, but two other important Offices because of his exalted position as Chief Justice -- the titular head of the Bar, and the Chairman of the Judicial and Legal Services Commission. Therefore, I am forced - my words choking past the disbelief strangling them in my throat - to ask, “Which one of these Offices was responsible for the ‘promotion’ and, more importantly, the ‘termination’ of Marcia Ayers-Caesar as a judge?”

 

Upon a clear answer to the above question, can you please then tell us which Office will be using taxpayers’ dollars to defend this monumental cockup in the Courts since Mrs Ayers-Caesar has already begun legal proceedings?

 

You see, my Prime Minister, there has been several notable ‘indiscretions’ the Chief Justice has been associated with while holding in Office - all of which, by the way, have been aired in the public domain, making Trinidad and Tobago a laughing stock at least among Commonwealth Nations that have inherited the British Westminster-style model of governance. Any one of these ‘indiscretions’ might constitute a prima facie case of serious misbehaviour in public office. Sadly, I am to understand that in your capacity as Prime Minister, you have refused to see what lies before your very eyes.

 

Any discretion you may have within your powers under Section 137 of the T&T Constitution, lies solely in your hands. But such discretion is not absolute and is not subject to your sole whims and fancies. You see, in Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago) [2006] UKPC 57, brought to the Judicial Committee of the Privy Council (JCPC) by your former party leader Patrick Manning, 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

 

Clearly, considering what ‘appears’ to be serious misconduct arising out of the behaviour of the Chief Justice, you have a duty to permit the President to appoint an independent tribunal regarding an investigation. A duty, sir, that you cannot ignore - in the words of the esteemed Judge. You are required by law not to fetter in any discretion or powers you exercise. Your failure to act decisively and diligently could open you to Judicial Review. You are perhaps aware that one of the grounds for judicial review is abuse of the discretion that you must refer the matter to the President. Abuse of that discretion could come by several means, unreasonableness being merely one. Perhaps you’ve heard of ‘Wednesbury unreasonableness’? It is when a decision is made that is so absurd that no reasonable person could possibly come to that decision. In Trini parlance, dotishness, nuh.

 

There are many other ills facing T&T, the ‘land of milk and honey’ according to your ex-boss. High crime rates, where people - living in self-protective steel cages - cannot even open a gate to drive a car into their own properties without bandits attacking. Young girls going missing; whether murdered or trafficked, we do not know. The police don’t know either for that matter. Even pension-age women aren’t safe, as sick rapes and murders are common to that age group also.

 

The foreign exchange situation is a merry muddle. The ferry fiasco is adrift in the open sea. Traffic into the centralised capital is a nightmare in daytime. The security services are insecure. There is a real perception that the Integrity Commission has lost sight of ‘integrity’. I can go on and on, but the important point is that all is not well. It is a country convulsing on the edge of a precipice, and any day may see the final convulsion that pushes it into the abyss.

 

Even if you act today Sir, the results may not be seen for another 20 years, in realistic terms. That does not mean you give up. You and your party can act now. Leave a commendable legacy and make the future brighter for the future generations. But failure to act leaves another type of legacy, as left behind by the last three of your predecessors. That type of legacy only fuel ‘rum-shop talk’ and it ill befits a Statesman. Let your name and party live on for the right reasons. Show the sturdiness of character you wish to be remembered for.

 

I hope that you take this advice in the spirit it is offered - as patriotic steerage to bring Gypsy’s ‘sinking ship’ back to safe shores.