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.