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From shame to scandal status
To protect and preserve the independence of the judiciary, the constitution restricted the grounds for removing any judge or the Chief Justice for “inability to perform the functions of his office (whether arising from infirmity of mind or body or any other cause), or for misbehaviour.”
In the case of the CJ, the President has to appoint a tribunal of no fewer than three judges from the Commonwealth to hear and determine the complaint. Selection of these judges who will sit in judgment of the conduct of the CJ is in the hands of the Prime Minister, as he must advise the President on the membership of such a tribunal. The draftsmen of our constitution could hardly be faulted for failing to consider the implications of giving the PM a role or say in the removal of judges, because it would probably have been dismissed as being too extreme, or unlikely that the government would, in itself, be the virtual complainant. The unique and peculiar factual matrix that has emerged in the present crisis casts serious doubt on the wisdom of affording the PM such a central and important role in the removal of judges. The allegation by the CJ is that there is a political conspiracy to hound him out of office, and there is the perception that the PM is involved in this exercise. At a minimum, the PM’s chief legal adviser, the AG, is involved in a complicated and intriguing plot, and is a witness for the prosecution. Is it fair to allow the PM to select the judges who will comprise the tribunal to hear and determine the complaint against the CJ? Do we not risk the perception that to do so would breach one of the cardinal rules of natural justice, which is, that a man should never be a judge in his own cause? How would you feel if you are accused of wrongdoing by someone, and his lawyer gets to choose the judge in the matter? Because of the appearance of bias, should the PM not allow the President or the Judicial and Legal Service Commission (JLSC) to choose these international judges instead? After all, the tribunal reports to the President—and not the PM. Should the PM have any role at all in the removal of judges? Can he not abuse his power and act on allegations made by a disgruntled party supporter or financier who lost a case? The PM also has the power to direct and dictate the suspension of the CJ. In the present circumstances, should the President not act on the advice of the JLSC, instead of the PM or in his own deliberate judgment, because the allegations of a political conspiracy cast a long shadow on the government itself? In the case of a judge, the President appoints the tribunal on the advice of the PM, but after consultation with the JLSC. There is no requirement for consultation with the JLSC in the procedure for removing the CJ. Ironically, one may argue that judges are better protected than the CJ. As “Sherman’s Shame” continues to unfold, the tide of public opinion keeps changing in favour of CJ Sharma. Details of private meetings and conversations between the AG and senior PNM officials, businessmen and representatives of a major insurance company reveal a sinister conspiracy to save Mc Nicolls from disgrace, because of a questionable property transaction that was concluded during the Panday trial. Justice Sebastien Ventour has been appointed by the JLSC to examine the conduct of Mc Nicolls, while the Court of Appeal has recalled the lawyers in the Panday appeal to make further submissions regarding the impact of Mc Nicolls’ decision not to testify on the perception of the average man in the street. No matter how you twist it or turn it, there can be no lawful justification for his refusal to testify. Were Mc Nicolls the only witness to a murder committed by the CJ in court, he could hardly refuse to testify at the murder trial, on the ground that he preferred to testify at impeachment proceedings—which are yet to be instituted. Once charges are laid, the criminal trial takes precedence over impeachment, because if the CJ is convicted by a criminal court, he would be automatically disqualified from holding office, thereby rendering impeachment proceedings unnecessary. The illustration is an apt one to highlight the seriousness of Mc Nicolls’ sudden U-turn in the witness box. “Sherman’s Shame” is fast becoming “Sherman’s Scandal.”
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Why does it have to be a scandal? If all the lawyers know that Shermie broke the law, as you yourself seem to have no doubt about, why can't he be disciplined? I recall him jailing witnesses who did not testify in cases before him. Is this situation allowed to happen because it's a case of different strokes for different folks?? Or a case of Trinidadians again being too complacent and accepting blindly that the so called 'leaders' (in this case the legal fraternity) knows best?
Surely there must be some way to discipline this man, or have him removed from a position he has so obviously used to personal benefit? I can never understand why complacency and head burying is such a way of life for Trinidadians.
The other thing that is bothering is why the delay in re-instating the CJ? The orginal conditions that led to the lawful actions under S103 of the Constitution no longer apply.
Whatever conditions made the actions of the PM and the President lawful no longer exist. I see no provisions in S103 for discretion in considering impending thoughts about impeachment as anything to do with S103.
It may be administratively inconvenient and bad for justice etc if the CJ was re-instated and then removed again. But so what? Who is the engineer of all that? Certainly not the CJ. It is an administration gone mad that is. McNicolls and those who relied on him must bear the responsibility for all that nonsense.
At the moment the CJ is being kept from office for reasons not covered in law of any kind i.e. he is kept out of office on conditions not covered by any law of the land. This is highly ridiculous for a Nation aspiring to reach First World status by 2020.
Sharma CJ should put President Max Richards on notice of the above facts, and indicate his intention to the President and to the public that he intends to walk into his office at a certain date and time. His conduct would rest on hundreds of years of legal tradition where no law now applies. What dey go do? Arrest him and charge him for 'trespassing' or maybe charge him for misconduct in preference to McNicolls. I's utter dam nonsense going orn dong dey!!
Actually, the CJ was never removed from office. He himself wrote to the President stating he cannot carry out certain judicial functions, hence the appointment of Hamel-Smith to carry out the full functions of the office. Therefore the only block to him re-assuming his official position is himself. He needs to write to the President and state that he is now ready to perforl ALL functions of his office.
Absolutely. Agreed.
In fact isn't it patently obvious to the President, as it must be to lowly plebs, that the conditions leading to subsituting Hamel-Smith under S103 no longer apply? So why is the President in such need of taking 'legal advice' on the matter that is so blindingly obvious?
Isn't the President hearing the call from the Law Association to restore the CJ to his full duties? In fact why isn't the President the one to invite the Chief Justice to resume duties?
Why must the CJ write to the President when a the ruling of the court is sufficiently informative of the absence of conditions that led to S103 actions? And what if he don't write to the President, will the President just sit on his hands indefinitely in the current circumstances? Something eh fitting too right from my perspective. Is it just about procedure and bureaucracy, that dis one have to be writing dat one, and dee odda one have to take legal advice and all kinda rigmarole?
I'm afraid to use the word conspiracy. But as of today we know that the Court of Appeal ruled that McNicolls was biased in the Panday case. So perhaps there could be more conspiracies around.
Since the CJ indicated to the President in writing (so there is a record) that he is unable to perform the full functions of his office, it is only fitting that he should also indicate in writing that he is now able to fulfil his duties. However, note the reason he gave for not being able to carry out his duties. He is still so impaired.
However much there may conspiracy (and I am not saying there is or isn't), it is not the place of the President to offer the CJ reinstatement, despite any amount of calls by any amount of third parties. As I said previously, the only hindrance in this is the CJ. Once he writes to the President, then any further refusal will give rise to the perception of conspiracy. It is only then we can claim that the government or alternative powers are working behind the scene to hinder him.
You should know that cheque Shermie recieved tainted Panday's trial and therefore the CJ had no option but to call him out over it. I personally believe that Shermie complained of the CJ for a few reasons, primarily to cover his own a**e over a transaction that was less than ethical. His complaints only arose after the CJ had cause to talk to him over the perceptions created by his acceptance of a cheque from a witness in a case he was presiding over.
In any other country in the world, that cheque would have been his pension, as he would have been summarily dismissed. Instead our brave CM decides that the CJ is interfering in the outcome of the case. Whoee! A law onto himself, as further indicated by his OWN decision not to testify as a witness in the CJ criminal matter. Dare you make a decision like that, I am sure your sorry a**e would be in a cell somewhere.
Frankly, the more of this matter coming to light, the less noble the CM appears to be, and he may end up having to resign or be fired, as like a bad egg, the smell he emits is spreading and settling on everything else.
Sharma CJ is reported to have said to the President "I don’t feel able to sit in court while a criminal charge is pending." That is what was said to have triggered S103. [Does anyone have the full text of what Sharma CJ said to the President?] I know of no other issue that was relevant.
The criminal prosecution that flowed from the actions of the Executive, against the head of the Judiciary, that ultimately led to actions by the President under S103, collapsed. In other words the 'house of cards' collapsed.
I argue the following:
Q1: Is (was) the President sufficiently and adequately informed that the reasons for his actions under S103 (even if triggered by a letter from the CJ) of the Constitution no longer apply?
A1: Yes
Q2: When?
A2: On the day the State withdrew criminal prosecution of the CJ leading to the collapse of the case that was at the heart of the CJ's letter (that prompted the Presdient to act S103).
Q3: How was the President informed?
A3: He was informed in the same manner as were a major part of the population of T&T and the world by the court. He doesn't need it in writing about a decision of the court.
Q4: Was the President duty bound to wait on a written indication from the CJ that he was now able and ready to perform his duties, before re-instating the CJ - because the CJ was the one to claim a degree of incapacity?
A4: I am unable to see where such a duty (if it exists) could arise or what principle applied, when the President was officially informed that conditions supporting the continuing provisions of S103 no longer applied. The cornerstones of democracy were/are at stake and loosened in my opinion. Having taken actions under S103, and it coming to obvious knowledge or there being reason to believe, that the string of conditions and events (the 'house of cards') that prompted such action were no longer in existence, the President was duty bound, to take positive actions to enquire of the CJ whether what pertained in the CJ's letter still applied - not simply to wait on a letter from the CJ and to delay further (albeit unwittingly) by seeking legal advice. Whilst the seeking of legal advice may be perfectly appropriate that is not my issue. The issue is who acts first President or CJ?
A Consititution is not to be treated like mere Statute where we hang on to the meaning of every word. It is to be treated and interpreted in a purposive way. And the main purpose of actions by the President in the issue at hand is meant to be the preservation of democracy and maintainence of the separation of powers (this is not a suggestion about impropriety). Based on that, the President should therefore adopt a proactive approach instead of what at this stage appears to be a reactive approach.
It would be a ridiculous situation if (hypothetically) the CJ never wrote to the President seeking re-instatement and the status quo simply remained the same with Hamel-Smith remaining in situ.
For too long we have witnessed and silently endured political inteference in every aspect of society. To be exact 40 plus years. Thankfully every rope has an end. Unfortunately the insanity was only recognised by the educated and thus the politicians were able to pounce on the minds of the 'uneducated'; and blinded them into believing that such things as - racism, hatred, bias, nepotism was a figment of one's imagination (ours by the way) while at the same time these 'behaviours' were effectively transmitted subconsciously to the 'affiliated gullible'.
It took a very 'visual' blowout to uncover the deception, destruction and the insanity to be actually recognised by the 'uneducated' because according to the article - As “Sherman’s Shame” continues to unfold, the tide of public opinion keeps changing in favour of CJ Sharma. The insanity can be finally challenged as we begin to appreciate what the song writer meant in 'a picture paints a thousand words'. What years of speech failed to ignite, a picture of injustice aroused the emergence of sanity to the politically dyslexic.
Very articulate and very accurate, Christine!
I'm glad this site continues to grow into a place where ideas can be shared. Keep up the good work Anand et al.
-G.
The letter from Max Richards to Sat Sharma indicates what everyone new was the case i.e. that the only thing that had 'impaired' - if you want to see it that way - the CJ was the criminal proceedings that were in progress at the time.
Max Richard's letter stinks of bureaucracy. Sharma had informed him by phone that he was 'ready and willing', so it is a load of utter rubbish the seeking of legal advice and having to receive such confirmation of 'readiness and willingness' in writing. We are not fools. The people of T&T are not fools.
My main point is that there was no real need to wait on 'legal advice' for Max Richards to proactively invite the CJ back to work. It is total nonsense that Max Richards had to be informed in writing or whatever before he could move proactively.
Furthermore Max Richards indicates in his letter that he was aware that the conditions that led to the S103 had become irrelevant. So, what was all the dithering about legal advice etc etc
I smell a rat....sorry ah mean rats!!
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Max Richards letter
“The nation will recall my address of the 24th July 2006 and my subsequent release to the effect that had received from the Chief Justice a letter dated 26th July 2006.
“In consequence of the declaration of inability made by the Chief Justice in that letter and, in accordance with Section 103 of the Constitution, on the 28th day of July 2006 I appointed Justice of Appeal Roger Hamel-Smith to act as Chief Justice until the determination of all legal proceedings relevant to the complaint of the Chief Magistrate against the Chief Justice Mr Satnarine Sharma.
“On the 5th March 2007 the criminal proceedings brought against the Chief Justice consequent on the complaint of the Chief Magistrate were discontinued by the Prosecution.
“I have received a letter dated the 22nd March 2007 from Chief Justice Sharma. By that letter the Chief Justice notes the discontinuance of the said criminal proceedings and confirms that following thereon he is “ready, willing and able to perform” the functions of the office of Chief Justice, which he shall be doing from Monday 26th March, 2007.
“In this regard I have notified the acting Chief Justice. I take the opportunity to record the nation’s deep appreciation for the sterling work done and service performed by the acting Chief Justice and his contribution to the restoration of confidence in the administration of justice.”
Christine you speak for a lot of us. Well said.
However, Shameless Sherman has not resigned and there is no sign of anything suggesting he is likely do so or to be kicked out.
The JLSC will probably wiggle their finger up a dark orifice somewhere and come back with the same brown stuff they produced on the last occasion they investigated the man.
The Law Association is weak and will probably begin fighting among themselves.
There is evidence of some dithering by the President highlighted in this thread.
And the electorate confused no ass about which way to vote. In the mean time public servants hands being greased with 15% pay rises to keep them 'fixed'.
So let we get real here, nothing doing really. Is more talk and old talk.
I cannot undertand why trinis are so blinded or is it stupid that they are unable to recognise the PNM modus operandi? For over forty years of their reign their modus operandi has been the same and I doubt it could or would ever change. They know how to put wool over the fools eyes, the fools allow them to do it and then complain. They come like a wife being battered by her husband but because of the so called "sweet love or sex" that he gives her, she would settle for the battering her whole life because she thinks that if she leaves him she would not be able to get anything better, so she prefers to let the bad continue. WAKE UP MY PEOPLE AND KNOW WHAT LIFE IS ALL ABOUT. YOU CANNOT KNOW THE FUTURE IF YOU DO NOT LET GO OF THE PAST.