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
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 Presidents decision
and the Leader of the Opposition apparently did not deign
to express an opinion. In any event, the final say rests with
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
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
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
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