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.

That Hackshaw file

If the Express’ reports are correct, that there “were over 180 deposits amounting to $1.8 million spread over 18 RBC Royal Bank accounts, with more funds in an account at Scotiabank and the Unit Trust Corporation”, then DPP Gaspard is absolutely correct in requesting the file for review. [Express 29/06/2020]

Think about it logically – simple mathematics shows that the depositor (and I am not saying it is Hackshaw) deliberately kept deposits under $10,000. Why? Deposits of over $10,000 attract attention as to the source of the funds. Clearly, the depositor (and I am not saying it is Hackshaw) wanted to avoid undue attention, which indicates that the depositor (and I am not saying it is Hackshaw) ‘knew’ there might be questions to be answered. Pretty unusual when you consider that some of the money were given in cheques in sums way above $10,000.

I am pretty sure that the ordinary man on the street would have a very difficult time converting/depositing a cheque of over $10,000 in partial increments of under $10,000. Did Hackshaw’s depositor (and I am not saying it is Hackshaw) get special benefits from the bank by virtue of Hackshaw being a high-ranking police officer?

A further discrepancy comes from Police Commissioner Gary Griffith, who, with his usual blustering style, seeks to obfuscate the issue further. On June 8 he claimed that Hackshaw’s file would be sent to the DPP, then some days later claimed that the file would not be sent until all investigations are completed – the further investigation coming not from the police service, but from an independent organisation, the PCA. One can only wonder at Gary’s agenda. There seems to be an institutionalised “protection” racket going on, a police brotherhood intent on protecting their own.

Another question that comes to my mind is why is Hackshaw’s depositor (and I am not saying it is Hackshaw) depositing money into Hackshaw’s personal accounts, money contributed by private businesses that “were donations given to him by businesses to assist with police functions”. Surely such money should have been given to the coordinators and planners of those police functions?

The Hackshaw situation raises more questions than answers, and in the interest of transparency needs to be fully aired – in public – to the satisfaction of all that there is no jiggery-pokery going on. And if Hackshaw is found to be misbehaving in public office, then I hope that the full brunt of the law falls on him, retirement or not.

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.

Lions led by a donkey

After reading through the article “Gary slams politicians, lawyers, as cop killed in cold blood”, published an hour ago on the Daily Express’ website, I had to wonder whether the Commissioner of Police (CoP) Gary Griffith is uneducated, ignorant of the law, merely stupid or a combination of all three.

Gary, your statements are absurd bordering on the stupid, if not already passing that gate. If I had to break down the utter tripe you spewed, it might be a doctoral thesis.

First, “the rights of cold-blooded criminals to be free when held with a firearm, have precedence over the rights of law-abiding citizens to survive in this country” is utter nonsense.

Starting with ‘cold-blooded criminals’ you mislead yourself. Any individual is presumed to be innocent until proven guilty beyond a reasonable doubt after a trial. So, merely arresting a person, whether caught with arms or not, doesn’t make that person automatically guilty. The burden lies with you, your officers and the Director of Public Prosecution (DPP) to make a sound case for proving that guilt beyond a reasonable doubt. Mouthing off to the public surely isn’t the way, or the evidence needed.

Continuing, the rights of alleged criminals are the same as those of the law-abiding citizens, so you again mislead yourself, your TTPS officers (who lack legal training) and the public when you spout such drivel. The Constitution guarantees that rights are for everyone. Not just those whom you think deserves them. Your opinion matters not in the slightest, really.

“It is difficult for the police to be doing their job of arresting these individuals with firearms only for them to be given a get out of jail free card, to go back onto the streets.”

Rights, Gary, rights. It is up to Parliament to abrogate those rights but even Parliament can be constrained if it breaches the Constitution. Rights must be balanced.

“Why must we wait for these cold-blooded killers to commit their act, before we understand that they should not be entitled to their freedom?”

Simple, Gary. It is still not part of the law to convict people on merely suspicion, or intention. Murder has two parts, an intent to kill or do serious harm, and the act of doing so. Hence, you can only convict after, and you need proof Gary. Real, solid evidence that can be tested and accepted in a court. Not the Mickey Mouse braggadocio of a CoP with an elevated opinion of his capabilities and unaware of his limitations.

“…we must start setting the precedence of looking over the rights of law-abiding citizens, over the rights of criminals”. Go back to paragraph 5, Gary. The rights of alleged criminals are the same as those of the law-abiding citizens, so you continue to mislead yourself.

Close mouth and engage brain, Gary. You have legal advisers, and many police officers who studied law. Consult them. They must be hanging their head in shame right now. Remember the Scotland Yard detective who mentioned, “Lions led by donkeys”? Surely, your entire TTPS members must be realising what that is like.

Response to Dr Emir Crowne

In response to Dr Emir Crowne’s letter in the Daily Express [25/07/19], Dr Crown seems to be trading on his PhD in the common fallacy of ‘appeal to authority’, rather than display any critical thinking and analysing the law, and the particulars of Dr Rowley’s situation. Let me dissect what he says:

He claims there’s nothing new in the Law Association’s report that was not already in the public domain. It matters not. What is in the public domain required an investigation to ascertain its veracity. Don’t forget that the Court of Appeal, as noted by the Privy Council, clearly stated that the Chief Justice’s behaviour and action:

“had such a negative impact on the Office of the Chief Justice and the Judiciary that they threatened to undermine the administration of justice and rule of law”.

That alone would warrant an independent investigation.

Dr Crowne goes on to say that the findings relied on hearsay. That is his opinion. An independent investigation would have called witnesses to either confirm or deny what was said and done, collect evidence and present findings supported by such evidence. Without an independent investigation we (the public) are denied knowing what is true and what is not. What is sure is that the CJ has admitted using his office to influence the dispensation of homes to ‘a few needy people’, causing them to jump ahead of others several hundred times over according to what is in the public domain. That is a prima facie case of misbehaviour in public office. That alone too warrants an investigation.

Dr Crowne then further compounded his error saying that if the court orders the Prime Minister to refer the matter to the President it would be an ‘unusual and twisted intrusion’ into the separation of powers. Nothing could be further from the truth. Courts order retractions of administrative decisions all the time; it prevents the arbitrary use of state power. The separation of powers also includes checks and balances to prevent abuse. The fact that section 137 of the Constitution exists is proof enough that it was envisioned that there might be ‘allegations of misconduct levied against a sitting Chief Justice’, and a process put in place to deal with it. The framers of the Constitution were no dummies.

The same short shrift can be given to his argument that a tribunal appointed by the president would be an intrusion into judicial independence. One cannot have an “independent” judiciary doing whatever it desires. There must be accountability. Otherwise the judiciary will be a law unto itself!

His argument that one would have to demonstrate that the PM’s decision was exercised unreasonably falls short. To demonstrate that the PM’s decision falls short of considering all factors is no great hardship – I can think of six reasons rooted in law off the top of my head why the PM can and should be judicially reviewed.

Don’t forget that the PM is potentially complicit in the CJ’s matters, and cannot be a judge in his own cause. Dr Crowne deliberately avoided this issue.

And finally, Dr Crowne hints at ‘hidden agendas’, repeating the soundbite of the PM. No evidence exists of any hidden agendas besides Dr Rowley’s paranoia. In any event, an independent investigation can explore this as well. Soundbites without substance is mere politics.

Clearly, Dr Crowne should stick to sports law. Administrative law and particularly judicial review seem to lie outside of his area of expertise.

More questions than answers

There are several matters that are on my mind following recent reports in the local newspapers.

1. After seeing a report about a “fake police station” and the ‘prisoners’ therein, my thoughts went to the healthy (or unhealthy, depending on your point of view) relationship between the police and Venezuelan/Columbian females, going back decades. One can only guess why raids on brothels require police to wear masks… afraid of being identified as clients by the arrestees? I also noticed that the numerous past reports indicate that it is mainly police officers who have these women as ‘guests’ in their homes.
2. The ‘Wealth Bill’ is another matter that gives me unease. Despite ‘reassurances’ by the Attorney General, there has never been a law enacted that has never been abused when the potential to do so is there. In other words, the potential for abuse is a certainty of abuse. Every time. Often in creative ways.
3. The Prime Minister, and indirectly the President, are sitting on their hands with respect to the most important Constitutional issue (arguably) in the entire history of the country since Independence from England. I refer to the matter of the Chief Justice (CJ) who has allegations against him amounting to serious misconduct in office if they are true. There is a duty, both legally and morally, for the Prime Minister to trigger an investigation via section 137 of the Constitution, by referring the matter to the President for an independent tribunal to carry out a proper investigation.

Instead, we have now become the only country in the entire history of the Commonwealth, to be in this position. But oh, how swift was the PNM in making the same type of recommendation against Sat Sharma, a former ‘Indian’ CJ, when there were allegations against him! This surely makes race a factor in the apathy of the Prime Minister.

But let’s put race aside. Can it be that the Prime Minister is afraid of being caught in a sting regarding the issue of cavorting with the CJ? The present CJ acknowledges that he approached the PM to influence the Trinidad & Tobago Housing Development Corporation (HDC), an Agency of the Ministry of Housing & Urban Development, and which the Prime Minster was formerly in charge of under the Manning stewardship. What else would an investigation reveal? That seems to be the million-dollar question.

1. The pace of murders occurring is accelerating. The ability of the police to detect and solve these is decelerating. And apparently, never the twain shall meet…

Can we get answers from those in charge please?

The police–a law onto themselves?

The article on the left, taken from the Daily Express of Wednesday 30 May, 2018, is an example of where police officers are a law onto themselves. And stupid, but I’ll get to that later.

See here also: https://www.cnc3.co.tt/press-release/man-ticketed-2000-each-5-tinted-windows.

Let me deal with the second point first, highlighted in the shaded red area.

But there is no specification in the law as to what grade of tint is acceptable.  

Instead, issuing fines for vehicle tint is up to the discretion of the police officer.

Hang on… no specification in law as to what grade of tint is illegal? Either the reporter is wrong or all the police in Trinidad since Independence have been acting as judge, jury and executioner… and supported in this by the entire judiciary!

To check this, I went off to the Motor Vehicles and Road Traffic Act 1924 (no, that is not a typo). Here is what I found:

Section 23(1)(d) states “no motor vehicle the windscreen or any other window of which is fitted with class so tinted, treated or darkened as to obscure the view of the inside of the vehicle from the outside;”

Next, I turned to the Motor Vehicles and Road Traffic (Enforcement and Administration) Act 1978 CH 48:52 [http://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/48.52.pdf].

In the First Schedule, point 61 affirms this.

On the face of it, this is a subjective standard which is against the rule of law. The rule of law requires that law must be accessible, intelligible, clear and predictable (Bingham, 2010). Nothing in Section 23(1)(d) appears to be clear and predictable. Why do I say this?

Most countries have a clear standard – rated in percentage – regarding the blackness of tints.

See here: https://delightandinspire.com/2015/03/18/international-window-tinting-laws-for-cars-driving-around-the-world/

Having a clear standard, with instruments to measure this standard, is an objective test. It does not depend upon the personal view of a particular police officer at a particular time in a particular place with a particular driver and particular vehicle.

Sadly, most citizens do not have the time, legal knowledge, financial resources, or sufficient outrage to have this clear injustice settled at the superior courts, in this case the Privy Council as I fully expect the local courts to side with the dunceys.

The second point is highlighted in green in the first picture. The tickets issued do not have the offence written on them. There are two possible reasons for this:

1) Either PC Duff (see first link to CNC3 website for photo) deliberately did that so the offender would ‘get out’ of paying the fine by challenging a non-offence ticket in court, or

2) PC Duff made a duff and doesn’t know his job.

Of the two, I would not be surprised at either, but I’m voting for no. 2 as the evidence shows me time and time again that dunceys are more stupid than we give them credit for. In other words, when you think stupidity can’t get worse, it’s the dunceys who come along (for the main part) to prove it can.

By the way, how many of you noticed that Motor Vehicle Supervisor II, Dexter Drakes, didn’t/doesn’t know the law either? His quote clearly shows him rewriting the law.

When tongue runs before brain

Fix hanging law to deal with killers

FORTY-TWO condemned prisoners on Death Row and 12 of them cannot be hanged because of Pratt and Morgan rulings, and those numbers will increase surely as night follows day so long as we continue to rely on external decisions to do what our laws already sanction.

What are the rudiments of a Pratt and Morgan ruling?

Tell us again, average citizens, Mr Attorney General, especially the relatives and friends of murder victims, what is the logic behind this no-hanging- after-five-years ruling?

Do we (T& T laws) request/ permit the foreign architects of this decree to make every microscopic assessment the minute we place matters in their hands?

After the police and the prosecution have gone through the rigours of investigation, evidence gathering and then in court face the legal intricacies and ambiguousness of defence attorneys and still persist to find those charged with this evil offence, guilty, are the guilty now 'less-guilty', not because new evidence has come to the fore, but purely by 'legal impediments' brought on by those who have the resources to 'buy time' by proficiently stretching our legal solidity to the limit?

And tell us, Mr AG, after the first appellant's

success in this foreign appeal process, does it now mean all condemned persons who arrive at this point of the process are guaranteed success?

Are our foreign decision- makers aware of the distressing continuation of our yearly murder toll over the last 20 years relative to our small population?

Have they themselves ever had to deal with a comparable murderous situation in their land?

If no, is it because their justice system is efficient and effective more so when it comes to dealing with crimes of this nature?

And if at some point in time such a daunting state of affairs did come upon them, would they remain bonded to this outrageous Pratt and Morgan decree or would they amend their laws to deal with the situation?

Are criminals particularly conscious of the present state of our criminal justice system and therefore carry out their nefarious acts with a laid-back mind-set?

Our Attorney General is quoted as saying the only mechanism the State could be involved in is to make sure the appellate process is quickened from the State's end.

And since the ruling political party is in charge of State affairs and the

Opposition is to monitor the ruling party's handling of the same and to agree or disagree to major changes, are the welfare of citizens at the mercy of two groups of perpetual nonconformists?

Since both leaders are forever whining (more so when they are in Opposition) that something needs to be done about the murder rate, tell us Mr Prime Minister and Madam Opposition Leader, exactly what is hindering collaboration between your two parties?

Don't your two bodies at any point in time agree to a practical course in favour of law-abiding citizens?

Is it then a fact that political parties don't give a damn about the vulnerability of the lives of citizens but their chief objective is about staying in power or replacing those who are already there?

Does that explain the hypocrisy of politicians when they attend the funerals of murder victims and display glum faces?

Or is the hypocrisy worth it? Who or what is creating hurdles/ delays in our appellate process?

Lloyd Ragoo Chaguanas

In response to a letter by Lloyd Ragoo published today (20/02/2018) in the Daily Express, I will attempt to answer some of the questions he asked.

“What are the rudiments of a Pratt and Morgan ruling? … What is the logic behind this no hanging after five years ruling?”

Well Lloyd, the Judicial Committee of the Privy Council (PC) in its wisdom and following the law, ruled that keeping a man on death row with a death sentence hanging over his head – and repeatedly reading out that final notice to him – would amount to cruel and unusual punishment (CUP). Since the Constitution forbids CUP, which is also forbidden under the most fundamental human rights and embedded in treaties which Trinidad and Tobago has signed up to, it means that it is now the law of the country that no hanging can take place after five years on death row.

This does not mean that hanging cannot take place – it merely means that the judicial process needs to take place and be completed within five years. So, it is rather disingenuous of Mr Ragoo to blame the “foreign architects” (PC judges) for the incompetence demonstrated by successive governments. It is incumbent upon the government to put into place a working system to speed up and streamline this judicial process. Therefore, the Attorney General is correct – the only mechanism the state could be involved in is to make sure the appellate process is quickened.

The rest of the questions in the article are meaningless, as they are mere rhetoric without substance. What would be more meaningful to ask is when the Trinidad and Tobago Police Service (TTPS) will raise the level of performance to international standards, when the detection rate for murders will rise above 6%, and the police will gather sufficient irrefutable evidence and process it to permit convictions above 1% (of the detection rate, mind you). What would be more meaningful to ask is when would legislation be passed to speed up the judicial process, so that final appeal will be completed before the five-year limitation.

What would serve Mr Ragoo well would be to read the Pratt and Morgan judgment, analyse what the judges said, look behind what is said for the reasons, and to learn to separate the chaff (rhetoric and emotive diatribes) from the wheat (substance). I suspect that this will never happen. Far often, it is easier to jump on the bandwagon and regurgitate meaningless rubbish.

Police shortage limboing along

The Express of 8 January 2018 quoted DCP Dulalchan as saying the police service needs approximately 1,100 officers. It’s a rather astounding statistic, much in similarity with Imbert’s announcement that the country was short of approximately 1,500 doctors.

The astonishment isn’t that the figures are high. The astonishment is that the ‘authorities’ seem to have awoken from some deep slumber to realise the deficiency. What is not a surprise is that the shortage didn’t happen overnight, although the ‘powers-that-be’ appear to be caught with their pants down. No, this situation was some time in the making.

Where does the problem lie? Well to start with, it’s the President who is responsible for appointing persons to the various Commissions, which in turn are responsible for appointments. Since the ‘lame duck’ in office had neglected to appoint a full Police Services Commission (PSC) in the past year, we can now see the effects of his negligence, especially in the doubtful state of whether the current PSC is even legal without a full complement of bodies, as revealed by the search for a Police Commissioner

My concern is not so much finding bodies to place in office, any person with 5 ‘O’ levels will qualify - and grade 3 at that. The real problem is that by starting with the bar so low, the bar scarcely raises during their careers. The bar, as I noted before, is very much like a limbo bar, where the police believe success is to keep lowering it and not falling flat on their collective behinds. The question is whether any Government has the political willpower to effect the necessary changes to make an efficient police service.

A cricket’s advice to the Chief Justice

I read with interest an article in The Express of 06 January 2017, “Pictures were Photoshopped”, as it relates to the Chief Justice (CJ).

I am led to understand  CJ Archie has taken the first steps toward suing The Express, or settling out of court, subject to certain retractions by the Express that he outlined.

Aside from wondering if he is pursuing legal action as the CJ or Ivor Archie in a personal capacity, I wonder who will be footing the bill? And, I have to wonder if the CJ is really that obtuse? There are several issues that haunt the CJ. It is not simply the one issue of whether photos were doctored and misrepresented by someone. There is a whole lot more that do not need itemising - as it is all in the public domain.  Sadly, the CJ hangs tough to an untenable position; untenable for the following reasons:

1. Any investigation, or proceeding to make the CJ accountable will necessarily involve much deeper prying into his public and private life. Is he ready to open himself to such scrutiny, knowing that the ‘court of public opinion’ has much harsher judges than his bench peers?

2. Is he ready to expose his family and friends, colleagues and juniors to the inevitable harsh remarks which will surely follow? Can he mitigate the hurt to family, his reputation and walk away with some dignity in tact?

3. Persisting in his present course of action will no doubt lead to court proceedings. That is a forum where secrets are bared to the bone so to speak. Can he afford to have skeletons out in the open, rattling on a hot tin roof?

Now, the issues in the public domain will involve several proceedings at various courts,  in all likelihood. No ‘Marvel’ one shot here. In any of them, he may well earn a pyrrhic victory but the ensuing morass will indeed be a shameful day, not only for the country of Trinidad and Tobago, but a bitter pill throughout the entire Commonwealth.

Far be it for a little ‘Jiminy Cricket’ like me to give advice to a legal mind like the CJ, but were I in a position to do so, I would advise him to look at the bigger picture, the panorama of the forest and not the trees. I would paraphrase Dylan Thomas and urge him to go gently into the good night, as wise men at their end know when dark is right.

How did this happen?

I’m trying to imagine the circumstances that a person can damage a car so badly. What comes to mind are two things: speed and idiocy.

When an argument goes wrong

Judicial independence is under attack in this country. It is under attack by the very bar that prides itself on independence and self-governance. That stinging irony aside, these attacks should not be taken lightly.

The Supreme Court of Canada described judicial independence as: “[the] lifeblood of constitutionalism in democratic societies… An independent judiciary is absolutely necessary to ensure that the power of the state is exercised in accordance with the rule of law and the provisions of [the] Constitution.

“In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals… Judicial independence further represents the cornerstone of the common law duty of procedural fairness, which attaches to all judicial, quasi-judicial and administrative proceedings, and is an unwritten principle of the Constitution.

“The twin aspects of judicial independence and impartiality are relevant to [the current matter]. The first is the requirement that the judiciary function independently from the executive and legislative branches of government… The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice.”

(Application under s. 83.28 of the Criminal Code (Re), [2004] 2 SCR 248—internal citations omitted).

Judicial independence essentially means that judges and other judicial officers are free to exercise the functions of their office without fear of reprisal, retribution or termination. The elements of such independence are security of tenure, financial security and administrative independence. Each of these elements is essential to ensure that democracy itself functions without undue influence from the State, unsuccessful litigants and third parties—like a select group of lawyers.

Indeed, the Law Association can pass any motion it wants. It matters not. The motions are purely symbolic; and, in a sense, ‘miss the point’.

As members of the legal profession, you cannot tout the importance of an independent judiciary while at the same time passing motions for the removal of judges. It is an affront to the very principles that a self-regulated bar—in a democracy no less—is supposed to stand for.

The above is a ‘letter to the editor’, published in the Daily Express of 8/6/17, by Dr Emir Crowne.

The writer has made two fundamental flaws in his thinking that – given his impressive qualifications and experience – are almost unforgivable.

First, there is the implied condition that the Chief Justice is an ordinary judge, and that it is wrong to remove him from his position. By implying this condition, Crowne is conflating the position of the Chief Justice with the position of the Chairman of the Judicial and Legal Services Commission. While they may be the same person, and that person is the Chairman because he is the Chief Justice, they are two separate offices. They both serve different functions, and in no way should be conflated or confused with the other. This is quite an elementary mistake and makes it quite obvious that if you start an argument from a false premise, you will never arrive at a true answer. Obviously, there’s a lot more I can write on this but I leave it up to readers to do their own research.

Second, there is the other elementary mistake of ascribing political motives to legal actions. There is a prima facie case of the JLSC being unconstitutionally constituted. Several reasons have been brought up in the public domain for this, one of which is that two of the retired judges are over the prescribed age (http://bit.ly/2sGkbGU).

Cases are assigned to judges arbitrarily, and if two cases are linked they assigned to the same judge (paragraphs 6 – 12 here: http://bit.ly/2sRW9rD). Implying that the judge is politically motivated to find in favour of the Opposition is almost contempt of court. It is impugning the character and reputation of the judge. Crowne ought to know better.

Sadly, their very independence means that judges are not able to comment in public regarding any matters, not even to defend themselves. They cannot even be seen to be biased in any manner (remember Sherman McNicolls and the Panday matter?). While a judge is entitled to vote, for example, he cannot be seen to be allied with any political party, neither can he even comment on which party he supports.

I want to address the issue of the bar attacking the judiciary. The bar has in no way attacked the judiciary but has expressed reservations in the conduct of the Chairman of the JLSC (who happens to be the Chief Justice). The fact that the Chairman, the JLSC and indeed the Chief Justice did not conduct due diligence in the matters that brought the judiciary into disrepute is indeed casting a stain upon the JLSC and the office of its chairman, and the office of the Chief Justice. You will notice that I have treated them as separate entities, which indeed they are. The bar was and is entitled to hold its titular head to account.

I also want to address the issue of “select group of lawyers”, which the writer has used to imply that such a group of lawyers is politically motivated… apparently consistently. I personally do not see it this way – and before I continue, I confess I hold no brief for these lawyers, and in most cases personally dislike them – but what I see is a group of lawyers who are willing to stand up for constitutional defence. Many of these lawyers have built their reputations on constitutional and human rights grounds, so it is no surprise therefore that anyone with complaints in these areas will seek them out. The fact that they are aligned with one particular political party may or may not be coincidence but that is certainly their right. In the same manner, there are lawyers are aligned with the other political party, but no one seems to notice.

The point I am trying to make is that these lawyers are making important changes to the law, especially where the administrative arm of the government is abusing its powers. Crowne of all people should appreciate the balance of the separation of powers and the rule of law. the rule of law is a concept many people do not understand even after many years of legal experience, and sadly, I see here that Crowne falls into that bracket.

My final point is that anyone/everyone has the right to stop abuse of power, constitutional shenanigans, and blatant disregard for the law/rule of law, as can be seen from the recent Privy Council judgement in favour of R Dumas.

Keep in mind the final arbiter will be the Privy Council. By then, the web will be significantly more tangled, as if the PC does rule the JLSC is unconstitutional, how then could it justify appointing new judges? The common-sense answer would be to have waited for that final decision.

Constitutional flim-flams

There are 3 constitutional crises facing the Trinidad and Tobago right now. The crises are:

1. The Marcia Ayers-Caesar infamous promotion to the judicial bench.
2. The possible illegality of the Judicial and Legal Services Commission (JLSC).
3. The possible illegality of the Police Services Commission (PSC).

I will deal with them in order listed.

Ayers-Caesar is the former Chief Magistrate (CM), a post held in the past by another infamous and less-than-honourable son of the soil, Sherman McNicolls. Search for on this website Shermie and you will find loads of shenanigans he was involved in. It must be something in the office that affects the head (and possibly wallets) of the office holders. In any event, we have a situation where the CM was promoted to the High Court and left some 54 outstanding cases behind, all of which may have to be restarted from the beginning. This pissed of those charged in these matters, and a riot occurred in the jail cells downstairs from the court which resulted in some police/prison officers (I forget which) being hurt. Of course, they can now sue the State (using the copy and paste master, Gerald Ramdeen for a sure win) for failing to provide a safe working environment (and that’s only for starters!).

But Ayers-Caesar is expected to go back to the position of the Chief Magistrate, toppling her replacement who can now sue the State because she has/had a ‘legitimate expectation’ to the post she was promoted to. And, if that is not all, the Chief Justice (CJ) claims Ayers-Caesar never resigned as CM. What?! I’ve never known someone having to resign from one position, within the same organisation, to take up a higher post in the same organisation. Did I miss something? Now we have a whole bunch of questions jumping out at the CJ and JLSC, the latter making the appointment by the way.

• If Ayers-Caesar didn’t resign, was she collecting salaries as both CM and a judge?
• Did Ayers-Caesar’s replacement know she wasn’t really promoted and so has no legitimate expectation to either job or salary?
• Why was there no due diligence checks?
• Did she sit in hearing for any cases at the High Court? What happens to those matters?

You see? All kind of questions come to my mind, and I am sure the public (and legal fraternity) has thought up a lot more.

Which brings me to the JLSC. If it is illegal as purported, then this whole episode is a mere speck in the judicial pond. Immediately coming to mind is that Ayers-Caesar appointment would be illegal, as would her replacement’s… and so would any appointments made during the period of illegality!! How so, you ask. Well, an illegal entity can’t appoint a legal entity. Simple. What is illegal can’t make the illegal legal. Now look how this spreads:

Every single appointment would have to be declared void (more lawsuits) and all monies paid by way of salaries and perks would have to be recovered. Like throwing back the cascadoo yuh done eat back in the pond. Hundreds of appointments in the most part, I suspect. And we haven’t even begun to think about the cases those so appointed have been involved in. Can you imagine a few thousands of prisoners realising that the magistrate or judge who heard their case is not legally appointed to do so? What about those who were/are sentenced to prisons or even fines? I see floodgates opening for lawsuits and a mess worse that the sewage dumped in Queen’s Park Savannah.

Same situation for the PSC.

I hope readers now see better how this constitutional gobar (cow dung) is important to be washed, dried and deodorised quickly… I really hope so.

Before I forget… those of you who are wondering why magistrates and judges aren’t commenting ought to know that they can’t. They have to remain impartial in both private as well as public life. Sad, isn’t it? They can neither complain, nor defend themselves.

Gone and forgotten

This bears repeating:

A caller to a radio programme last week suggested there is the danger that we could kill the messenger without hearing his message. He was commenting on the demands made by Opposition Senator Gerald Ramdeen that Chief Justice Ivor Archie, as chairman of the Judicial and Legal Service Commission, release all the information on the recent appointments of three judges to the High Court.

The caller suggested further that Senator Ramdeen’s demands be examined fully, that they should be seen in a wider context of our time—when our institutions appear to be falling apart and the credibility of office holders is being questioned publicly.

I found merit in the caller’s suggestion, so I re-examined the recent call by Ancel Roget, president general of the Oilfields Workers Trade Union, to BP to “take your platform and go” and the statements of Watson Duke, president of the Public Service Association, during his call for a “Day of Resistance”.

I fitted both statements into the context of our time, and the results were the same: I concluded that Mr Roget needs to be enlightened about the realities of T&T in the 21st century, and Mr Duke, a crude, showy brawler, is best suited for a Randy Glasgow’s comedy special.

To review Senator Ramdeen’s message we should begin with the February 2014 High Court matter between his client, Jamal Sambury, and the attorney general before Master Patricia Sobion-Awai in which she declared herself “satisfied that substantial portions of the claimant’s witness statement had been lifted from other witness statements in an attempt to mislead the court.”

She noted “the similarities” between Jamal Sambury’s witness statement and that of Jamal Fortune in a previous case (CV 2009-3296), describing them as “so striking that the only reasonable conclusion was one was copied from the other”. She recorded her concerns and called for an investigation to prevent further abuses.

Later in the Appeal Court Senator Ramdeen, instructed by Varun Debideen, appeared before Justices Mendonca, Smith and Rajnauth-Lee. Court documents revealed that attorney Lee Merry, appearing for the AG, reminded the court of Master Sobion-Awai’s conclusion that “the conduct of the litigation was dishonest and an abuse of process.”

Justice Mendonca observed that Master Sobion-Awai wrote “it was a plagiarism from somebody else’s witness statement”, to which Merry responded that in such an instance the main form of deterrence was imprisonment for contempt.

This copying and pasting of evidence became known as “Prisongate”. In May 2014, Chief Justice Archie instructed that the matter be referred to DPP Roger Gaspard, who said in a media release that the matter warranted a criminal investigation. That July, Debideen attempted to introduce an explanation to Master Sobion-Awai but it was denied. In October, ACP Donald Denoon told the Sunday Express that several attorneys were interviewed and he expected the matter “to be concluded soon”. It is still ongoing.

The context widens in November 2010 when one considers the case, known as “The Walking Files”, in which attorney Mark Seepersad reported to the High Court that he shared office space with Ramdeen. On Ramdeen’s departure, he discovered in the office confidential High Court documents and personal belongings of one Asha Harripaul, at the time a judicial support officer.

The judiciary reported the matter to the police. Investigator Sgt Guevarro submitted a report in May 2011, detailing responses from Seepersad. It was concluded then that matter did not warrant further investigation.

After a Sunday Express expose in 2015 Seepersad said he was never interviewed. Acting Police Commissioner Stephen Williams then directed ACP Simon Lendor to re-open the matter. Senator Ramdeen claimed that he was questioned by the police, but no mention was made of the “Walking Files”. The investigation continues.

The context widens further, involving prisoner Michael Bullock, a former client of Senator Ramdeen. In February 2009, Master Paray-Durity made an award to Bullock, but in December 2001 that same year, unknown to Bullock, the monies were deposited into Senator Ramdeen’s account. Bullock wrote to the AG and Law Association. Last February, eight years later, the senator paid Bullock $407,000. The Anti-Corruption Investigations Bureau continues its work.

Both Ramdeen and Debideen came in for severe criticisms from Sir Anthony Coleman, chairman of the Commission of Enquiry into Clico, who blamed them for the delays in that matter. Last year, Attorney General Faris Al-Rawi revealed that Senator Ramdeen’s State briefs under the People’s Partnership government, totalled some $36 million; the Senator responded, giving up all his State briefs.

A still wider context? Should any of these matters go before the new judges will Senator Ramdeen be shouting “victimisation”?

—Keith Subero is a veteran journalist

ignorance or stupidity?

Every so often, I encounter some article that makes me wonder about whether people are just stupid, or deliberately ignorant. Take this person:

Beware debit card skimming

Card skimming has been around at least 2 decades, if not more. We were warned about this way back in the 1990’s in Trinidad and Tobago. So for this person to profess such ignorance makes me ask myself, under which rock had he been sleeping? The alternative is sheer stupidity. Same with people who, decades after the scam was exposed, still get taken in by 419 scammers.

Some basic precautions :

1. Use a credit, not debit, card for online purchases. Credit cards usually have more protection. And debit card accounts usually have your savings which are at risk. If a scammer gets hold of your credit card details, then the most they can get is up to the limit of the card, not your entire savings.
2. Use a card with a low enough limit to prevent undue liability in case something goes wrong. A card limit of £500 (TT$5000) can usually cover any purchase necessary for everyday expenses.
3. Repay the card when you receive your salary, or as much as possible, to reduce interest payments. Most cards give about 56 days before interest is imposed.

A fool and his money….

‘He dogs dead’

It’s high time the people of Trinidad and Tobago – including the educational ‘elite’ – wake up to reality.

What am I talking about? Prayers, nuh.

Govt urges Shouter Baptists 'to raise their collective voices' in prayer for crime screams the headline.

'Baptists have important role in reduction of crime' is another.

Once more, the so-called ‘leaders’ of the society are calling on people to “pray for crime”. I’ll get back to the words in the quotation marks in a bit. In the meantime, they refuse to face the fact the prayers have never worked, and will never work. But hey, the Christians prayed, the Hindus prayed, the Muslims prayed, then they all prayed together in various groups and gatherings and combinations and yes, the criminals still preyed. And are still preying.

Which leads me to think that, like the words in the quotation marks above, they are ‘praying for crime’ in the literal sense, since there is no sign of abatement.

I’m not surprised that crime is rising, and will continue to rise… when the best that those with the authority and resources to fight crime can do is call for prayer to battle criminal enterprise, then is more than dogs dying… it will continue to be the people.