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The Rescue Mission
The much anticipated and dryly predictable suspension of the Chief Justice surprised few because the battle lines were irreversibly draw some time ago. There are several nagging issues about the manner in which this second round of impeachment proceedings and suspension has been handled. The scandalous refusal of Chief Magistrate (“CM”) Sherman Mc Nichols to testify at the long awaited criminal trial against the CJ seriously undermined his credibility. Mc Nichols’s competence and character was dealt an even more damaging blow by the decision of the Court of Appeal that he mishandled Panday’s trial by failing to disclose his financial interest in a land transaction with one of the witnesses. The expensive legal battle that preceded the criminal prosecution of the CJ came to naught.
The Judicial and Legal Services Commission (JLSC) quite rightly appointed High Court judge Justice Sebastien Ventour to investigate the actions of the CM to see whether there was any basis for disciplinary action and charges of misconduct. According to media reports, the Ventour report was submitted to the JLSC a few months ago. The JLSC has thus far ignored this report. It has failed to make a decision in accordance with the findings and recommendations of its own investigator.
This is a delicate and sensitive constitutional matter involving an alleged political conspiracy to remove the head of the country’s judiciary. The CM is entitled to be publically vindicated if the report cleared him of any wrong doing. Conversely, the nation is entitled to know whether the CM misconducted himself and should be disciplined.
CJ Sharma has functioned as a judge in the Court of Appeal in very few cases since his reinstatement. The uncertainty of his position made this the proper and most appropriate course to follow as litigants could be forced to re-argue their cases afresh (at their own cost) if the CJ was suspended before judgment was delivered in their appeals. In stark contrast the CM has continued on his merry way as if nothing has happened, oblivious to the fact that he is under investigation and may be charged and suspended from office. He has continued to start new cases even though he is yet to complete and give decision in many old ones such as the infamous air port corruption case. Is he ‘padding his statistical resume’ to make suspension difficult?
Had the JLSC acted in a timely manner one wonders what impact a decision to charge and suspend the CM would have had on the question of whether the President should have suspended the CJ. It would have certainly made the Prime Minister ‘pause for a cause’ and reconsider their position in light of all that has transpired.
The deliberate delay and inaction on the part of the JLSC regarding the Ventour report created a politically convenient window of opportunity for the PM to suspend Sharma without having to deal with the obvious difficulties the suspension and charging of his main witness would have been caused. It is almost as if the JLSC was waiting, just to accommodate the PM. Questions are now being legitimately asked about whether the JLSC is part of the political conspiracy to remove the CJ because its members are known to hold lucrative public offices controlled by the government. Quite a few commissioners owe the government a debt of gratitude for their appointments to these public offices which are known to be in great demand because they are excellent post-retirement career options. Rest assured the JLSC will not suspend Mc Nichols even if he is charged.
It is clear that the government wanted to remove CJ Sharma on the eve of the next general election. I predict that the PM will now set the date. Sharma must by law retire in January 2008. He has been suspended in circumstances where the impeachment tribunal is not functioning and no date has been set for the commencement of the impeachment proceedings.
It is clear that the government intends to drag the impeachment proceedings until after the general election and possibly after January 2008. This would explain why such basic preliminary matters like a secretariat have not been established to enable the tribunal to commence sitting.
What has occurred is nothing short of a bloodless palace coup. The government has terminated the career of a distinguished judge who rose through the ranks as a career judge after a lifetime of public service. The CJ is their political hostage and the cruel irony is that the government is in control of the rescue mission.
By Anand Ramlogan – 2007-06-16
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While all of that is going on (or not), we must wonder at least about Lord Mustill and Sir Vincent Floissac. I don't know of the third member very much.
Lord Mustill and Sir Vincent are no fools. They are not going to be hired guns. These are men of honour. Wouldn't they enquire of the JLSC's findings and position? Surely they would want to know about the CM's position. Nothing prevents them from withdrawing from the Tribunal - which is one possible scenario, though some may see it as remote.
It would damage my faith in humanity even more if Lord Mustill and Sir Vincent would play into the hands of the T&T government or allow themselves to be used as pawns on a chessboard. They would damage their honorable place in history by participating in something so unjust. Each man likes to imagine what his unwritten epitaph would be - the epitaph in the minds of others.
I can't believe Lord Mustill and Sir Vincent will play ball with this. No - I don't want to believe it.
CJ Sharma is a master strategist. Manning is a child in front of him. The PNM government stands to be crushed once and for all in the aftermath of the Tribunal. The PNM government is probably playing straight into a zugswang. I'm optimistic for CJ Sharma who I predict will eventually receive the Nation's highest honor in years to come or one will be created specially for him.
So in a sense we must be careful not to disturb his important course in history. But don't be surprised, if Manning calls off his Tribunal - to save face and to use calling it off like a political pole vault.
Today's Newsday (2007-06-20) has a report quoting Kenneth Lalla, former chairman of both the JLSC and the PSC (Police Service Commission) and also a lawyer. Lalla reiterates the position that the Chief Magistrate must be suspended forthwith. He further states that the stance taken by the present JLSC (that the CM is sitting on high profile cases) has no merit.
“If he goes on leave they will have to be postponed. But to suspend the Chief Justice and allow to preside in court, the Chief Magistrate who made serious allegations against the Chief Justice and then refused to be cross-examined, is not even-handed justice and adds to the view that the Judiciary is under siege.”
He also criticised their reported decision to defer disciplinary action against McNicolls on the grounds that suspension would do more harm than good and was not in the public interest, describing the members of the JLSC as 'confused' (not a term I would use but appropriate in polite forums).
So will the JLSC suspend McNicolls in the face of this new criticism? Hardly likely. Trinidadians in positions of authority have thicker skin than a dead crapaud, and this will wash over their (JLSC members) backs like wet duckshit.
The worst of the damage is not the reputations or finances of the top involved parties. It is the scepticism which the ordinary man will view the justice system, the distrust he will have when he knows that an obvious wrong is not being righted, and spurious reasons given in support of playing the fool with the law. That's insulting, JLSC!
As a layman, watching these legal beagles making a mockery of the law, I wonder that any matter I may have that potentially arises, how would I be treated, since I have no 'clout' like these 'big men'? I wonder then that the violent criminal activities are rising, with more people resorting to 'sixgun' justice.
The Trinidad Express 2007-06-17 reported:
"The body governing the judiciary has remained tight-lipped on its deliberations into allegations of misconduct against the Chief Magistrate which started well over two months ago. Instead, members of the Commission secretly elected to defer the question of McNicolls' own suspension because he is yet to deliver a decision on the Piarco Airport preliminary enquiry, after a near five years of hearing. "
Express (here) quoted Ventour:
In my respectful view, it would appear that the Chief Magistrate's decision not to allow himself to be cross-examined in the criminal proceedings may have compromise the rule of law and the administration of justice. Clearly the decision has led to a waste of human and financial resources and has succeeded in sending the wrong message to the general public.
and that was after
"......on the morning of February 14, 2007 [McNicols] swore to four statements knowing that the statements were to be tendered into evidence and that he (the Chief Magistrate) is likely to be cross-examined on the evidence tendered.."
Ventour also found (as nearly all of us did) that:
When the Chief Magistrate wrote the Director of Public Prosecutions on 13th February, 2007 there was no parallel proceedings in existence. The Chief Magistrate must have appreciated that based on the response of the Chief Justice the probability exists that the Prime Minister may have decided (based on advice) not to proceed any further with the impeachment proceedings. Requesting a stay of the proceedings in the circumstances was therefore premature.
Moreover, when the Chief Magistrate decided on 5th March, 2007 not to allow himself to be cross-examined the Chief Justice had not yet responded to the Prime Minister's letter of 21st February, 2007. Even at that stage it could hardly be said that there were in existence parallel proceedings. I think the Deputy Director of Public Prosecutions quite properly concluded that the reasons articulated by the Chief Magistrate in support of the decision not to be cross-examined were therefore untenable.
So after all of that (and more) we now learn that the matter of McNichols suspension is deferred because it is not in the public interest on the grounds that he is yet to deliver a decision on the Piarco Airport preliminary enquiry, after a near five years of hearing. That state of affairs pre-dated 5th March 2007 and it now appears that his status and the duration of the Airport enquiry was an actual licence for McNichols to behave as he did in any matter. In other words he could conduct himself as he pleased secure in the knowledge that the Piarco Airport matter would shield him from all and everything! What a load of utter.... you know what. In effect it seems that the JLSC has allowed McNichols to use the Airport enquiry as a shield. What utter...you know what.
How could the Nations President allow an impeachment to proceed after that?
Max Richards should now consider legal measures to do the honourable thing - stop the impeachment, dissolve Parliament and declare a State of Emergency - pending an election. The situation is now clearly beyound ridiculous. Not only that justice has been thrown in the mud; the office of the President risks being dragged into the mud as well. People are not stupid.
The Ventour Report stands on its own and is quite clear in its findings. For the JLSC to ignore or side step its responsibilities only on the basis that the CM is in the midst of finalizing the Airport Enquiry which has been going on for five years, is a cop out and an abdication of its responsibilities to the citizens of the country. Its rational is equated to anyone who has commited a crime or breach of law to set aside the issue on tha basis that they have to look after their kids, so can't come to the trial now or in the near future, only when the child turns to a man/woman. This is at best "ludicrous thinking" on the part of JLSC and sets a bad example, and a precedent which would be difficult to correct later on. It would become the trend of the day, and the CM would still becaome a lame duck within the judiciary, for loss of respect and integrity. Do the right thing, CM, step down now until the whole episode of CJ is completed. Its the right thing to do.!
Things to make you go hmm.
Sherman McNicolls is found guilty of bias in a trial where Panday is a defendant. Now he is adjudicating in another trial (the airport enquiry) where once again Panday (and friends) are involved. How can this be? Sherman should feel some shame and recuse himself, because bias just does not disappear. But Shermie has never felt shame, either then or now.
Justice Ventour, along with the JLSC have further damned Shermie. By refusing to testify as a witness in the CJ affair, Shermie stepped over the boundaries of his position: in the matter involving the CJ...
Same as I've been saying all along.
So now that Shermie is clearly in multiple breaches of law, is he being treated the same as CJ Sharma? Definitely not. Unlike Anand Ramlogan, I am unwilling to think that race is involved but to use an old and apt phrase there is indeed a nigger in the woodpile. For some untold reason, the JLSC in the form of Lionel Jones and Jean Permanand thinks that since Shermie is sitting in the Piarco Inquiry he is not in a position to be suspended. The sane voice, Selby Wooding is quelled.
My personal view is that Shermie is to be suspended forthwith. Not because of his race, proven bias etc, but because he has been verified as committing an offence and the law MUST be applied equally above board, for ALL. To do any less is to make a mockery of the entire legal system, the judiciary and the public, whose faith is that justice will be done.
My view is supported by Selby Wooding, chairman of the JLSC.
The decision by the Judicial and Legal Services Commission (JLSC) to defer suspending the Chief Magistrate will erode the foundations of democracy and permanently place the judiciary, along with the JLSC itself, in the dog house.
This is a path well trodden in Zimbabwe (former Rhodesia) – and is anyone surprised that the ‘New Draft Constitution’ is back on the agenda. Should T&T ever become ruled by a dictatorship, the JLSC’s decision will stand out in history as a major contributing factor.
Mr McNichols, the Chief Magistrate, was the centre stage witness in the most important criminal trial in the entire history of Trinidad & Tobago. The trial in itself was the result of complaints of impropriety he made in May 2006 against Sharma CJ. Mr McNichols withdrew from giving further evidence on the grounds (as he saw it) that the pursuit of parallel proceedings, one of which he took to be impeachment, would be oppressive. The Ventour Report has now confirmed what the public had already known (in my opinion) that Mr McNichols could have had no reasonable grounds for his actions. Any other person acting as McNichols did would have already been criminally prosecuted for such actions. Has the rule of law been thrown on a scrap heap somewhere?
The JLSC’s decision will be seen by the international legal community as so unreasonable that no reasonable authority could ever have come to it. It is fundamentally flawed. How could the JLSC expect 1.3 Million people in Trinidad & Tobago and millions of other intelligent minds around the globe to accept that a decision to suspend the Chief Magistrate is to be deferred because it is not in the public interest? Apparently their position is based on a consideration that Mr McNichols is yet to deliver a decision on the Piarco Airport enquiry.
The JLSC in effect has given Mr McNichols a separate licence to conduct himself as he pleases, or even take leave of his senses for that matter, secure in the knowledge that the Piarco Airport enquiry would shield him from all and everything! In reality the only ‘licence’ McNichols holds and can lawfully retain was always subject to his sustained good conduct as a lawyer and in his public position as Chief Magistrate.
I say that there is good reason for the JLSC to conclude that the Chief Magistrate’s conduct in March 2007 was prejudicial to the administration of justice. Preserving public confidence in the judiciary and bolstering the foundations of democracy at this crucial point in our history are of far greater public interest than McNichols’ role in the Piarco Airport enquiry, or any adverse consequences that may flow from his removal from that enquiry.
The JLSC should now consider what I say and make alternative decisions that properly serve justice, democracy and the people of Trinidad & Tobago!
Mr. Ramlogan - I am a bit confused about the article posted in the SUNDAY EXPRESS dated 17th June. This report will and must have some kind of effect or bearing on the case against the Chief Justice. What in your estimations will be the government next move. If this is left unchecked, it opens the legal system for licks on the fact that it shows up the system as being bias. After all the Office of the Chief Justice, is much more an important office than the office of the Chief Magistrate.