Friday 22nd July, 2005

 

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Judiciary in turmoil

By Balgobin Ramdeen

I thought long and hard before I decided that I must write in answer to the article “Weakening of the judiciary” written by a dear old friend and colleague, Kenneth Lalla, in the June 25 Guardian. I must say that he has written much but said little and that little would better have been left unsaid.

He presumes and assumes and comes to conclusions with which I do not agree. Of course he is entitled to his opinion. But as a learned and experience counsel his opinions would carry weight with the public. It may make bad matters worse. Therefore I join issue with him.

He must be aware of the saying of an English judge who remarked: “What is customary is not necessarily right/legal.”

Further, when a person in authority has the unambiguous right to exercise a discretion without being called upon to state his reason, normally, if he does give his reason, then his reason may be challenged in court. In the case of the President, however, any such challenge would be futile. So his suggestions and promptings that the President give his reason are much ado about nothing.

As he acknowledges, the Constitution vests the President with sole discretion in the matter. He has to consult the Prime Minister and the Leader of the Opposition. It is reported the Prime Minister agreed with the President’s decision and the Leader of the Opposition apparently did not deign to express an opinion. In any event, the final say rests with the President.

The matter of the conflict between the Chief Justice on the one hand and the Attorney General, the Director of Public Prosecutions and Justice Hamel-Smith on the other, with the Prime Minister caught in the middle, is a most unfortunate event in our judicial record. It is why early suggestions were made that the matter should have been resolved before it reached this unseemly point.

Mr Lalla must see that the mistake Justice Hamel-Smith made was to become involved in giving advice to the DPP and the AG. It is obvious that in the normal course of things if the CJ were removed, Justice Hamel-Smith would become the obvious successor. It is clear he would have a vested interest in the matter.

Was Justice Hamel-Smith duty bound to give advice or should he have abstained from personal involvement and advised the duo to get advice from an independent senior counsel? This whole issue has become a tangled web.

The whole matter was made worse when the Prime Minister conducted a long, drawn-out investigation of his own. The status of the DPP and the AG was itself enough to establish a prima facie case for him to refer the matter without delay to the President.

Investigation was a matter not for him but for the tribunal to be set up by the President. Why did he drag out the issue like a “bobolee” to be flogged in public view? Should he have called the interested parties together and quietly settled the matter which is now becoming a national embarrassment?

Mr Lalla criticised the President for not acting in the spirit of transparency and giving his reason for his decision to bypass Justice Hamel-Smith, who has in the past acted competently and who is the most senior judge in the Court of Appeal. My learned friend wishes that the President had gone beyond the requirement of the Constitution and satisfied his curiosity.

It is unfortunate that he writes: “It is presumed that the holder of the office of President would act fairly and reasonably when making such appointments or in the performance of his functions, although there have been occasions when a former president may have departed from that norm.”

He continues to lecture the President on the merit of the claim of Justice Hamel-Smith to be chosen to act as chief justice in the absence of CJ Sat Sharma.

To his credit, he does presume, if I may borrow one of his favourite words, that the President may have taken into consideration the course of events and he involvement of Justice Hamel-Smith leading up the present sordid impasse.

He does mention that Justice Hamel-Smith, whom he seems to favour to fill the post, “is alleged to have advised that proceedings for the removal of the Chief Justice could be preferred under Section 137 of the Constitution.”

He expects that the person who had acted before would be the logical person to be selected to fill the acting post. Did Justice Hamel-Smith have the same expectation when he advised the AG and the DPP?

If newspaper reports are accurate, the DPP requested a fourth meeting with the Chief Justice on the Naraynsingh matter. Was it after consultation with Justice Hamel-Smith? It is alleged that the meeting was tape-recorded and is being used in evidence against the Chief Justice. What can we deduce from that?

There are those of us who advised in vain that this sordid matter be quietly and wisely settled and not be bruited about in public. We seem to have an insatiable desire to wallow in a mess of our own creation.

My own conviction is that the President acted wisely, properly and totally within the boundary of the Constitution. His behaviour is impeccable and flawless.

Balgobin Ramdeen is a lawyer, author and former MP

 

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