Is Dr Rowley hijacking the Presidency of T&T?

After reading about nominations for the Office of President in local media, I am forced to ask, “Is the nomination for, and by extension, the Office of the President of Trinidad and Tobago being hijacked by political expediency?”

The Prime Minster Dr Keith Rowley supports the nomination of Ms Christine Kangaloo for President. His grounds are her experience a) as acting President before, and b) Senate President. Dr Rowley seems to have ignored all that is unseemly improper with such a nomination – and to which he cannot plead ignorance. I shall not be occupying my time setting it all out here when it is already in the public domain. Readers have the choice to be well-informed, or not.

Mr Israel Khan SC has accepted nomination for President.

The following are some well-known characteristics of Mr Khan:

1.    He has an enviable record of sound performance.

2.    He has contributed as an Independent Senator in his service to the country.

3.    Nobody owns Mr Khan’s tongue.  He is not scripted, somewhat unfiltered.

4.    He has a way with words – straight talking that cut to the heart of matters – causing most citizens to agree with him – only because what he says is so plain spoken and non-evasive.

5.    Owning his own tongue and being the boss of his own person, he has spoken out frankly, without filter and for the common man against perceived misdeeds by both political parties.

6.    He has spoken out on major scandals without fear or favour, as a lone voice in the legal and public domain. For example, he was the lone senior member of the legal fraternity, bold and with iron fortitude against the Chief Justice Archie debacle. He hung a banner from his Chambers that "All is not well on Knox Street” with options for the Chief Justice, “1) Resign now, 2) Answer S137 Tribunal, 3) Face criminal charge of misbehaviour (15 years jail)”.

7.    On the Vincent Nelson SC constitutional, civil and criminal imbroglio - he called out the ex-AG's advisers on the indemnity agreement with convicted King’s Counsel Vincent Nelson to publicly come clean on their roles in the drafting of the controversial settlement.

8.    He has demonstrated that he is a fierce and tireless fighter for what is right for the grassroots public, both in an out of court.

Basically, Mr Israel Khan will kowtow to no one. He will put ‘boof’ where warranted – within a Constitutional remit of course. You will get it plain just so - ‘not sugar coated’!  Mr Khan epitomises what the country needs at this time to get the elected on both sides of the political divide to do their jobs properly.  He will pull this Nation back from the brink of collapse.

His appeal as a President is that he would bring the lived experience of ‘the man-on-the-street struggles’ to that office. 

The PNM has an opportunity to demonstrate that tribal politics will not be allowed to hijack who gets selected for Presidency and to put the greater good of the Nation at centre stage.

The Prime Minister should take lead and without hesitation change his mind by dropping Ms Kangaloo and supporting Mr Israel Khan’s nomination. I urge Dr Rowley to do the right thing. Rise above your party and leave a legacy that aids the country.

Mr Mohan Ramcharan

Birmingham, England

 

Where Israel Rajah-Khan went wrong… Again!

I note with interest, coupled with amusement, Mr Israel Rajah-Khan’s attempted chastisement of attorney Brian Baig (Express, 30 June 2022 –https://trinidadexpress.com/opinion/letters/vulgar-claims-against-legal-system/article_51b5cda2-f801-11ec-858e-33817f45e547.html)

Mr Baig has given a semi-appropriate response (Express, 2 July 2022 – https://trinidadexpress.com/opinion/letters/the-facts-speak-for-themselves/article_bc6124ba-f998-11ec-aea9-27ee4e1a5bd3.html ).

Taking Mr Rajah-Khan’s article first:

Mr Rajah-Khan apparently takes umbrage over Mr Baig’s highlighting that several prominent Indo-Trinidadians are or were before the courts on charges, but were/are unsuccessfully prosecuted by the PNM. He then went on to point out that the charges are proffered by the DPP, and heard before an independent judiciary.

Where Mr Rajah-Khan obviously went wrong is that the evidence does not stack up on this position. In the latest Privy Council’s judgment, John Henry Smith and another v Attorney General of Trinidad and Tobago and others (2022) UKPC 28 (Smith judgment), the Law Lords at the Privy Council certainly made a mockery of Mr Rajah-Khan’s position. In other words, they delivered a serious ‘calpet’ on Mr Rajah-Khan’s perspective.

In paragraph 2 of the judgment, the judges clearly pointed out that the Anti-Corruption Investigation Bureau (ACIB) was established within the Ministry of the Attorney General under then AG John Jeremie. This makes it a political entity. It is this political entity which brought charges under the Piarco 1-4 cases. For Mr Rajah-Khan to say “I can state categorically that there is not a single criminal case in this country whereby a political party prosecuted—be it PNM, NAR or UNC Partnership” demonstrates that he did not read the judgment at all!

In the Smith judgment, the Privy Council judges also clearly pointed out that the judiciary was not independent in any way whatsoever! Not only was there bias on the part of Sherman (Shermie) McNicolls, he was financially and in other ways beholden to John Jeremie, a PNM politically appointed Attorney General!

Note that under the Integrity in Public Life Act, Basdeo Panday an Indo-Trinidadian, remains the ONLY person charged, despite hundreds of others over the past 10 or more years failing to file the mandatory records. And of course, the Privy Council also ruled that under Sherman McNicolls, there was apparent bias in Mr Panday’s trial due to the political obligation Shermie placed himself when accepting financial and other benefits from the AG, John Jeremie. The Smith judgment merely confirms what was raised and proven 12 years or so before!

Additionally, Mr Rajah-Khan states “All citizens, regardless of race, class or creed, if charged with a criminal offence, must receive a fair trial”. Of course, this is what should happen. We all know that what should happen is different from what does happen. Shermie proved that over and over. I have long blogged about his corruption. That much is not in dispute, and is in the public domain if anyone should choose to do a little research. Given that he was the Chief Magistrate, this makes it all the more appalling!

The Smith judgment also showed that High Court and the Court of Appeal in Trinidad and Tobago applied less-than-stellar reasoning. One can only wonder why the population is reluctant to turn to the Caribbean Court of Justice (CCJ) as the final appeal court, given that some of its judges come from the same pool… But that is a story for another day.

Mr Rajah-Khan also mentions “two other prominent East Indian attorneys’ names were mentioned in his sordid letter but their criminal cases are before the court, and thus sub judice, and it would be unethical to mention their names in my letter.”

The sub judice rules apply when mentioning something currently before the court will influence the outcome of the trial, or in other words, prevent a fair trial. Surely the names of the attorneys so charged are in the public domain? Their matters will be listed on the court website. Thus, why would mentioning their names prevent a fair trial?

Mr Baig himself made a tactical error in his response to Mr Rajah-Khan. Instead of addressing the issues Mr Rajah-Khan brought up, he misdirected himself to point out a 19-point list of PNM corruption, which have not been prosecuted. That may be relevant to political point-scoring but fails to address the core issues. If Mr Baig wished to set Mr Rajah-Khan right, refute the points he made, not introduce new tangential issues.

I urge Mr Rajah-Khan to be more circumspect in voicing his opinion. After all, he has 43 years’ experience at the Criminal Bar.

COVID-19: State of emergency for a brain disease?

If you see the levels of stupidity out there surrounding COVID-19, you might be inclined to think that this virus has caused a brain disease. That in itself would be a stupid inference or conclusion! How?

Stupidity was always present in the human race. It lives alongside intelligence as a separate and independent force. This means even the very intelligent are also afflicted by stupidity! Contrary to popular belief, if you put a bunch of intelligent people in a room - and present them with a crisis - a majority of times you'd get a decision that is not better than the average of intelligence in the room. In fact, you're more likely to get a decision that is far less than the average of the room. How this is possible at all, is explained in the domains of social psychology and mathematics - NO VIRUS REQUIRED!

This post has been triggered by responses to Israel Khan's letter in TT Express of 29th March 2020, in which he calls for a State of Emergency. He reasons very well about this.

But then you have other 'folk' who have reasons for saying things like 'It eh go help' or 'It eh go work'. The letter of response in TT Express 4th April 2020, is a fine example. Importantly it relies on a sort of quasi-logic leading to a statement, "Secondly, the absolute restriction of movement of people theoretically may only cure our country of the pandemic in the short term." I'll deal with this one only because I don't have time to waste debunking the brainlessness of the other items of supposed 'reasoning' in that letter. One does not argue with stupidity.

'Theoretically' - yes - of course - because nobody knows 'actually' or will be able to see into the future.

'Cure' - a totally nonsensical concept to apply in this.

'In the short term' - well hello: nobody is aiming for a short-term cure. The world and T&T needs (to aim for) a long-term lock down of the virus to facilitate its death. If it can't spread - and humans are the main vehicle - then those who survive and develop immunity will cause it to die.

In other words - we are the long-term CURE (a word I don't like) or CONTROL. I'm not even going into vaccines and treatments, because that's estimated by the best scientific minds to be at least a year away. We can't wait a year and act lethargically about this because thousands in T&T - millions worldwide - could be dead by then.

So - for people who do not comply - mainly those whose stupidity will come to the fore - and we only need about 20% of them, there is no point arguing and educating them while thousands locally are killed. Why? Because stupidity is not something one can 'educate' away! You have to treat it with brutal force. In other words: LOCK DOWN EVERYBODY! SOE IT IS.

And I would go even further to suggest the declaration of martial law - where people can be beaten into submission.

Incursions into impropriety have begun

I see that the first ‘incursions into impropriety’ have begun. Those small incursions that chip away at the rights of the individuals, with the approval of members of society who will never think that those incursions will turn against them later on. It is the beginning into the slide on a slippery slope, where people give up rights to authority to ‘feel safe’ but those rights are never ‘returned’. Nazi Germany, Zimbabwe, apartheid South Africa are some places that comes to mind.

The police ‘raid’ on the office of the Express newspaper is the perfect example of rights being trampled upon by authority figures. Freedom of expression (section 4(i)), and freedom of the press (section 4(k)) are both guaranteed rights under our Constitution. Now that the police can no longer bring charges under the Sedition Act, they are going for the vague charge of “Tipping Off” found in section 51 of the Proceeds of Crime Act 2000.

A quick review of the Act showed that the charge of “Tipping off” is designed to prevent prejudice at trial for a person charged under the Act. Not to seize evidence which might prove detrimental to the person under investigation, for the purpose of withholding that evidence. No one has been charged in this matter. There is a possible defence under section 49 – a person, acting in a professional capacity and reporting through the relevant supervisory personnel at their workplace, is exempted from this charge.

A point to note: – there is no similar charge or section in the U.K.’s Proceeds of Crime Act 2002. Instead, it prohibits authorities from breaching fundamental human rights even in the course of their investigations.

Coming back to the actual search and seizure of material at The Express’ office, there will of course be judicial review of the actions of the police, as ordered by the High Court. The court will decide on the balance between rights of the police under their investigative powers, and the rights of the press with respect to its freedom of expression and public interest in what was published.

The fact that the search was conducted under the authority of the very police officer suspected of and under investigation for financial impropriety is an important factor. Under what conditions and what evidence was presented for such a search warrant to be signed off and who was the judicial officer who gave authority to the warrant? These are questions that have to be answered. Search warrants cannot be granted – or rather, should not be granted – willy-nilly. There must be just cause, and evidence presented, for fundamental rights to be breached. The right to privacy is one such fundamental right.

Of course, we know that some judicial officers (magistrates and judges) merely rubber stamp the requests by police, without conducting due diligence questioning. It is these scenarios where the slippery slope comes into view. Eternal vigilance is demanded from those who live in this society.

When you have no Rights!

This post is about when people do find that they do not have rights that can be enforced, or that bodies responsible for protecting their rights take no action. I'm not focusing on individuals as such - but more on groups of people.

What happens when you have no Rights? By 'Rights' I mean things that can be enforced legally.

You don't under existing local and international law have rights to food, water, and heath care. But you have rights to life. How strange? Don't argue with me - argue with the United Nations.

Think of this situation: You are roused from sleep in the middle of the night by 'the authorities' and you and your family are told "leave now, else we'll move you!" You are not given time to pack anything. With the heavy muscle and ammunition around, you move fearing being manhandled and a getting a beating. On the way you feel confused and angry, because you've lived in your own home, purchased with your own money for years - and you have left all your possessions behind. That was your land and your country You are taken to another country you know nothing off and have never lived there.  You start back from scratch. Over the next few years you and others treated similarly fight in the courts but lose repeatedly. Human Rights seem not to matter.

Some think the above is totally hypothetical. It isn't. It has happened before! Really? Yes - see here.

There are thousands if not millions of people around the world who for a number of crazy reasons do not have a means or method to have their rights enforced. This has always played on my mind. A few weeks ago, I came across organisations and Tribunals that provide some help. Unfortunately they have no legal muscle - but it's better than nothing.

As this is not mean to be a lecture, what I've found is summarised in the mindmap (click this). There are clickable links that take readers to various piece of interesting information.

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.