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President above the law?
The issuing of an ultimatum to the President of our country by a lawyer from my law chambers was the source of some consternation and controversy. The President deemed the letter “disrespectful in the extreme,” but did not say why. The headline in the Guardian on June 23 read “President slaps down UNC 36-hour ultimatum.”
The President made no specific comment about the short deadline given for a response, so this headline was somewhat misleading. In any event, the idea that an attorney dared question the actions of the President at all prompted the usual partisan reactions.
PNM supporters were out in full force to condemn the attorney, whilst Opposition supporters commended the brave stance and gumption. Threatening the head of state with legal action is somewhat unprecedented, but there are several misconceptions that should be clarified. The proposed legal action was aimed at the advice tendered by the Prime Minister to the President, as this is what triggered the decision to suspend the CJ.
There is nothing novel about this, as decisions of the PM are subject to judicial review.
The shortness of the deadline is bold, but not wrong. The new court rules of procedure mandate claimants to write a pre-trial legal letter to forewarn the other side that legal action is going to be filed unless the matter is resolved. These letters must contain a deadline that is flexible and can be adjusted according to the importance and urgency of the issue.
There could hardly be a more urgent matter than a challenge to the suspension of the nation’s CJ, hence the 36-hour deadline was justified and warranted in circumstances where more that one month had elapsed since the appointment of the impeachment tribunal, with no word as to when the actual inquiry would commence.
It is worth noting that after this letter was publicised, steps were taken towards “operationalising” the tribunal. Counsel has been appointed to the tribunal and the President has responded to the several queries made by writing the CJ’s lawyers.
There can be no doubt that the prominence given to Ms Bhagwandeen’s letter was a catalyst to these developments. It raised national awareness about the artificiality and illegality of the CJ’s suspension in the absence of any intention or moves to operationalise the tribunal, and forced the foot of the State to mash the accelerator pedal down hard.
The idea that the President is above the law, and hence his actions should not be challenged, is dangerous and wrong. The constitution does seek to immunise the actions of the President, but I have grave doubts whether such immunity is absolute. The President is bound to exercise his powers in good faith, in accordance with the rule of law, the purpose for which it was given and with due regard for the fundamental human rights of all citizens. To accept that the contrary is possible without the possibility of legal challenge is unacceptable in a functioning democratic society with respect for its constitution and the rule of law.
Suppose a president suspends the CJ because the ruling PNM that appointed him was uncomfortable with the CJ. It did not think it could count on the CJ to be loyal and understanding to the PNM. It did not feel comfortable with an Indian CJ, given the context of our racial politics and imminent general elections. He was too independent and was resisting attempts to politically influence and control the judiciary. If a president moves to suspend the CJ and openly says he is doing it for his party on the dictate of the PM, could this be challenged in court?
What if the President openly declared that he was racist and did not want any Afro-Trinidadians working for him on staff? This would be a clear violation of the right to equality of treatment, but likewise be immune from legal challenge. It cannot be that the framers of our constitution intended to place the office of President beyond the reach of the long arm of the law.
The modern developments in the field of administrative and constitutional law do not support the concept of one man being above the law. The President will be immunised from legal action when he is acting in good faith, acts in accordance with the rule of law, promotes the purpose for which it was given, and has due regard for the fundamental human rights of all citizens.
Sacred cows are few and far. If the President unconstitutionally suspended the nation’s CJ in a vacuum, citizens should be able to send a legal letter to the President to forewarn legal action and ask relevant questions without being branded disrespectful.
More is expected from the head of state.
by Anand Ramlogan 2007-07-01
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The Trinidad Express 2007-07-01 cuts to some of the key issues, whilst the Guardian of same date is happy to rehash mostly old material.
Excerpting from the TT Express 2007-07-01:
up to 30th June 2007, no formal instrument of appointment had been issued to any of the three-member tribunal comprising retired Privy Councillor Lord Michael Mustill, Sir Vincent Floissac and Dennis Morrison
Sir Vincent yesterday [2006-06-30] confirmed that he is still to receive his formal instrument of appointment.
Martin Daly was quoted as saying "It is highly arguable that the suspension was premature in the absence of a formal appointment of the tribunal."
This is Martin Daly choosing his words carefully. Some of the people in T&T chupit but not all of them chupit (stupid in Trinbagonian slang). You don't need Martin Daly's brains to see that procedure was not followed. The dismissive and arrogant tone of the President (making foundation-less comments about disrespect) is a good indicator that that Cindy Bhagwandeen hit the spot - good and proper. She ketch dem wid dey pants dong!
Now dey movin' real fas' and like headless chickens to pull up dey trousers - buh everyt'ing done expose' boy. We see dee t'ing a'ready - whuh hidin' it go do now.
From what I read in the media - if taken as based on fact - and the rest of what Martin Daly says, leads me to infer that Sharma CJ was removed by a process that was inconsistent with the Constitution and therefore illegal.
Sir Vincent has let part of the information out of the bag - he has left a very crucial crack in the door for us to peep through. As I said before he is not going to stand for nonsense. I predict that the Tribunal will dissolve itself or resign - after the full facts of this shoddy mess become known.
But hold on, there is another problem - how could the Prime Minister remove the Chief Justice illegally and get away with it. Yuh see what ah talkin' about? Okay yuh eh see - ah talking dictatorship. All zandoli find dey hole. I suggest that the so-called suspension of the CJ in the way it was done, is actually the start of dictatorship. Watch and see.
Cindy's recent letters to the President has set off a chain reaction of events, all of which are positive, in the sense that the "tribunal" is now moving at "warp speed" to get operational.
A counsel has been provided to assist in this regard, and recent news reports the Tribunal will be in Trinidad sometime about July 23, 2007 to begin its work.
All of this is really good, and appears very responsive to the contents of Cindy's letters. But what is very disturbing and confusing to me at least, is that the Tribunal has not as yet been "appointed and sworn in" , at least that what has been reported in the newspapers as of yesterday.
This raises the question, as to whether the President acted within the scope of the Constitution, or outside of it, in which event, and if true, his actions towards the suspension of the CJ Sharma may appear illegal?.
It is very difficult to comprehend, that with all the resources at his disposal, public funds, batteries of lawyers both foreign and local, how could he make such foolish mistakes or oversights?
Was there such a burning desire to act forthwith, that he acted prematurely and without forethought on the Prime Minister's advice without thinking of the consequences?
In any event, his actions have national consequences, and the people has a right to know that their President is not acting out of malice or prejudice, but nevertheless, these types of actions should not be acceptable in the least in any democratic society.
Having said that, it raises the questions, given the severity of the deed, the impact on the CJ Sharma and the Judiciary as a whole, and given that if as reported the appointment of the Tribunal is now being operationalised, then the suspension of CJ Sharma could have been indeed illegal?.
But then we could not have our President commiting illegal acts, could we?. Which begs the question therefore, should consideration be given as to "impeachment of the President" in light of these illegal actions?
No one is above the law, and no one is exempt, in this regard. These are dangerous precedents being set out for the people of the country, and if left unattended, will only grow and escalate to untenable and uncontrollable proportions to manifest itself.
Perhaps this would be food for thought, not only for the people of Trinidad and Tobago, but also for the "Tribunal" to contemplate whether or not it is being asked to review and arbitrate over an "illegal act" to begin with. After all justice and fairness must not only be done, it must also be seen to be done.
The public must continue to be vigilant and on guard at all times if democracy will survive in our country, and must hold all those who are placed in positions of power and authority, fully accountable for their actions at all times, without fail.
What may seem like an innocent faux pas to some, may be a plan of a grander scheme to others. As I said no one is above the law, as repeated by the Prime Minister every so often, and that it should be applied to all without exception. Think about it!
Power corrupts and absolute power corrupts absolutely!.
We must always be on guard so that arrogance does not permeate and prevail amongst our officials of high offices, lest the sense of power and corruption dim their thinking and sensibilities, as may be the case at hand, just maybe!.
Just a thought for the day!
Good Luck and Godbless us all.Trini.t.o.o.
According the media in T&T 2007-07-10, President Maxwell Richards has declined under the provisions of S38 to provide information on how the Impeachment tribunal was appointed.
The reasons proffered by the President are in the Guardian 2007-07-10 - please view this quickly before it disappears forever - as seems to be a trend from my experience on difficult politico-legal issues.
Among the interesting reasons are:
So forgive me - does this lead me as a member of the public to reasonably think that the President has something to worry about if he was to dispense with Constitutional immunity and operate in a spirit of transparency?
Whether or not it is in his Consitutional remit he is still free as the President to choose to release the information requested. It is amazing how the Constitution seems to put him in a mind-lock.
If all was whiter than white and if I was the President I would say "Heh - look it dey - everything is taken care of according to the letter of the law. Allyuh chew on dat!"
But it looks as though the President finds himself in a position where he cannot even contemplate acting in that way - hence the appearance of a need for Constituional immunity.
Law can bully people but it cannot prevent the people's minds from coming to a perception of reality.
"President George Maxwell Richards believes that he should not be answerable to any court for suspendingChief Justice Satnarine Sharma." Express Tuesday July 10th, 2007
For the President to cite constitutional immunity granted under Section 38 of the Constitution of Trinidad and Tobago, is to me likened to citing the "5th Amendment" of the U.S Constitution" - I refuse to answer on grounds I may incriminate myself."
While clinging to a "right and priviledge" all in accordance with law, it is "damning in itself" to the observer.
To recap the events, it is worthy to read Anand's "President above the Law" and "Suspension disguised as Removal".
Then on to Cindy's letter to the President, and his reply expressing "extreme disrespect" to him. Surely the President is a learned and intelligent man, and must know that "respect" is a two way street, and for him to show such profound disrespect, no arrogance, to the people of the country by words, actions and behaviour, it is almost insulting for him to be recently citing Mahatma Gandhi in the same breath of his sentences.
The Prime Minister on the other hand, was "waiting for proof", and on the four affadavits filed by Chief Magistrate, Sherman McNicholls amongst others, advised the President to "impeach" the Chief Justice.
While the Chief Magistrate refused to be cross examined in a court of law, the President moved ahead full speed to "suspend" the Chief Justice forthwith, with immediate effect under Section 37 of the Constitution of Trinidad and Tobago.
The "Tribunal" learned and intelligent Jurists, are now being reported to arrive in Trinidad and be appointed and "sworn" in on July 23rd, 2007.
The reality is, that either they were never "sworn in" before, or that they are now being "sworn in" twice.
The important question is not whether the President waive his "immunity" under Section 38, but whether the Chief Justice's rights were violated under Section 37, when he was suspended by the President, absent of an appointed and sworn in Tribunal, in accordance with the Constitution?
If the President is now stating that his actions are not reviewable by any court of the land, where is it reviewable and by whom?
Where is the Prime Minister who kept repeating himself that "no man is above the law", were these hollow statements to the people? Or were these only intended for a "select few" of his choosing?
Is there a joint committee in Parliament that is charged with this responsibility? What are the checks and balances that are in place, if any?
Is it possible that "one" man can make a decision that "cannot" be challenged in the country, on the advice of another man?
Individual rights are protected vigorously in all democratic countries, and there is always a "mechanism of recourse" where it would appear that those fundamental rights are violated, where does it lie in Trinidad? This is truly frightening, especially coming from the President of the land. More especially so when he is "appointed" and not elected for office. Is this "Dictatorship" in its infant stages?
Moreover, is the "Tribunal" now being operationalized, be charged with adjudicating over an action taken by the President, but not in accordance with the Letter, Spirit or Intent of the Law, the Constitution itself? What sections would they making reference to, the very same section that was "flawed" in execution by the President himself?
Was the Chief Justice prejudiced by an "illegal act" and and the Tribunal being asked to endorse and rationalize such an action?
This is an historic time for the people of Trinidad and Tobago, and care and caution must be exercised by all to ensure fairness, equity and justice prevails in the end. Not some knee jerk actions taken by a few without forethought and regard to the consequences for the people of the land.
Our citizens must be alert to the "despots and dictators" of the world, whether elected or appointed to office, who use every opportunity to capitalize on their "brand of democracy".
How callously they overlook the fact that they are there to serve the people, who keep and maintain them in lavish lifestyles to the detriment of the citizens themselves.
What a true definition of "neemakharam", lest we so easily forget.
Always seek change peacefully!
Godbless.Trini.t.o.o.
Captain Walker, in case you missed it and just for the records, today's "Express" reports that the Tribunal will be given their letters of appointment on Thursday July 26th, 2007, will be sworn in and will meet on Friday July 27th, 2007 to begin putting together their terms of reference and schedules for hearing, including whether it will be in public or held in camera.
It is also noteworthy, that Chief Magistrate McNicholls and the "accuser and main witness" has stated a preference for the hearings to be held "in camera".
I was of the thought and opinion that the "accused" CJ Sharma would have been given the preference of his wishes over that of the "accuser", in that he requested the hearings be held in "public", but will wait and see the outcome.
It is also interesting to note that JLSC has still not acted on the Ventour Report, and the Chief Magistrate is still sitting on the "bench".
Very interesting times ahead, but I'll wait and see the Tribunal's reaction to all of this as they proceed.!
Godbless. trini.t.o.o.
This thing becoming the best soap opera ever! I can't wait to see what unfolds next.
Jumbie, you are so right, this thing has so many twists and turns, and so many "conflicting dates" that its hard to keep track of the events as the "unfold". So true!
What is also interesting, is that Chief Magistrate Sherman McNicholls (the main accuser) has at least as many legal counsel as the Chief Magistrate (the accused) Sharma.
Is there something out there he knows but we still don't know about yet?
Shermie wants a "hearing in camera" and Sharma wants a "hearing in public"! Is there something there is to hide in all this yet?
Lastly as the "battle" rages between the CM and the CJ, the PM lurks somewhere in the dark unseen and unheard, watching the "action" unfold.
Just like in the movies, he could not have scripted it any better, Manning that is! But now he goes on to say he wanted to "drive bus". He keeps fooling us at every turn, he's a real wiz.
Well, fasten your seatbelts, the bus ride is on and its all downhill all the way, Manning at the wheels. Hold on to your hats!
Perhaps Brother Hinn may have been right, who knows, only time can tell.
The "Romans" had the "Gladiators", Britain had the "black hooded executioners" and France had the "Guillotines", now Manning has brought to Trinidad, The "Tribunal".
He has put Trinidad on the world stage, maybe thats his Vision 2020, who knows, only Manning, but then he changes his mind from day to day, depending on his "revelations".
So fasten your seatbelts, hold your hats, the "show" must go on!
Or as Gandhi would have said, "Let them experiment with the truth."
Peace and tranquility to the members of the Tribunal, and somewhere within all of that, most importantly let "justice prevail".
Goodluck and godbless! Trini.t.o.o.