17 Mar 2015

Jumbie's fourth law - stupidity has no shame

Material non-disclosure is not a concept that is foreign to members of the legal profession. As lawyers we are trained to appreciate the importance of making full disclosure to the court when seeking to convince a court to exercise its discretion in our client’s favour.

So any junior lawyer would know that in applying for an ex-parte injunction one must advise the client and insist that she not withhold material facts from the court. To do so would be unfair to the other side and would therefore be an abuse of the court’s process. To allow the court to exercise its discretion in your favour when there are material, adverse facts that you have not disclosed is conduct that is frowned upon and would be met by judicial sanction.

Similarly, in making an application for leave for judicial review a lawyer knows that he must disclose all material facts to the court since to not do so is to abuse the court’s process and to risk causing cause embarrassment to the judge of the court.

The Police Complaints Authority (PCA) is an important institution to our country and our citizens. The authority stands as a buffer between citizens and the police and the abuse power by the latter. In our small nation there is always the potential for the few bad apples in the Police Service to abuse their powers. We are now on the verge of another general election. There is the potential for the few bad apples in the Police Service to abuse their power by displaying political bias.

There is no doubt that this unfortunate reality was in the minds of the drafters of the Police Complaints Authority Act. This is seen from Section 8 disqualification of politicians from being members of the PCA. This is also seen from Section 18 assertion of the PCA’s independence of all pubic functionaries (except certain limited constitutional exceptions). The PCA Act contemplates a public body that is independent and that is perceived to be above politics.

With all this in mind, it is mind boggling (or maybe not) that Mr West remains in office to this day and that his action has been supported by some senior members of the legal profession.

Various persons have commented on the need, or lack thereof for Mr West to have informed the President that subsequent to his appointment as head of the independent and important PCA, he, Mr West, intended to be a witness for the Leader of the Opposition in a case against the Attorney General.

One commentator has speculated that maybe Mr West made full disclosure to the President and the President ignored the effect of same. I doubt that any reasonable person attaches weight to such speculation. 

Another commentator has opined that Mr West cannot be removed from office since he has not engaged in misconduct that triggers Section 13 of the PCA (dealing with revocation of the PCA chairman’s appointment). I beg to differ. Section 13 is irrelevant in deciding whether the President’s original decision to appoint was valid or is void as a result of Mr West’s material non-disclosure.

The argument is similar to that raised in the 2013 English case of Dr Hans-Christian Raabe v Secretary of State for the Home Department.

Mr West’s intention to be a witness for the Leader of the Opposition in the matter against the Attorney General was bound to cause embarrassment and bring disrepute to his office. Anyone doubting that should consider whether a victim of police brutality by a police officer showing a PNM bias could feel comfortable in having Mr West preside over his complaint. MrWest’s decision to be a witness is relevant to the President’s original decision to appoint. If Mr West is guilty of material non-disclosure, the President is entitled to revoke his appointment.

As a lawyer of many years standing Mr West should have known better. By all means be a witness is whatever case you so choose, but have concern for the independence of your office. The President must not allow his office to be tainted by one who should have known better.             

Larry Lalla is an attorney at law [http://www.trinidadexpress.com/commentaries/West-on-shaky-ground-296506711.html]

I have often pointed out to the absolute truth of Jumbie's First Law: When you think dotishness cannot get worse, someone will come along to prove it can.

So this morning, I spotted that article quoted above (in green) by Larry Lalla, and it seems to me that when a person qualifies as an attorney at law, sense flies out of the window. I have never read anything (okay, almost anything) as stupid as the above.

The author makes several missteps in his thinking, much like other members of the People's Partnership government. He seems to forget what the role of a witness is, so I will remind him. The following are taken from the website of the Crown Prosecution Service in England (CPS).

  1. It isn't personal
  2. You are not on trial
  3. The law in England and Wales (also Trinidad and Tobago) is based on the idea that a defendant is innocent until proven guilty
By being a witness, David West is not taking any side either for or against the AG or alternatively Keith Rowley. This was adequately dealt with by senior counsel Martin Daly:

“However I am satisfied that it is wholly wrong to attack West because he is a witness in that case pending before the High Court or to seek his removal on that ground from the office of Director of the Police Complaints Authority,” he said.

Daly said in order to understand “the fallacy” contained in the request for West to step down because he gave a witness statement it was essential to understand what a witness statement was.

“A witness statement is not a personal recommendation or statement of opinion (unless given by an expert such as a scientist or valuator). It is a statement of facts relating to matters in dispute which the witness asserts are true,” he said.

“It is not a statement given in support of the litigant as a person or in support of whatever political or other views the litigant may have. Any political colour inserted in such a statement is likely to be struck out by the court,” Daly stated.

I am often amazed that people like Larry Lala do not appear to be fazed/embarrassed by airing their stupidity for the whole world to see. That might bring me to Jumbie's Fourth Law: Stupidity has no shame.