Wednesday 26th July 2006

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Mess that’s the CJ affair

The fundamental mistake made by Prime Minister Patrick Manning and his Government in attempting to find a resolution to the first set of allegations made against Chief Justice Satnarine Sharma was to agree to mediation behind closed doors. After eating up valuable time, 19 months of obviously futile back and forth, mediation has been abandoned and the matter is now before the High Court.

Private mediation could never have satisfactorily settled such an allegation as the one made against the Chief Justice. Once the matter was out in the public, a privately mediated settlement would have had little credibility in the eyes of the public.

Here are senior officers of the State, the Attorney General and the Director of Public Prosecutions, making serious allegations against the Chief Justice. Then there were the two judges allegedly playing bit parts in the drama and the Prime Minister finding there sufficient gravamen to the allegations to require the President to establish a tribunal, with a final decision ultimately to come from the British Privy Council.

From what has been carried in the media, the stories are diametrically opposed to each other: it is either the AG and the DPP are lying on the Chief Justice as part of some grand political plot to get rid of Mr Sharma or the Chief Justice has a few serious allegations to answer; no middle ground and therefore behind-the-scenes mediation could never satisfy.

In the meantime, a second allegation has been made and this time anxious—perhaps too anxious to have a quick determination of guilt or innocence—the Prime Minister, through his Attorney General, passes the allegations over to the Director of Public Prosecutions and the Commissioner of Police, ignoring the process determined by the Constitution to investigate alleged misbehaviour of a Chief Justice.

In this second allegation, another major mistake was made by the Prime Minister in offering to give immunity to the CJ if he chose to leave quietly. Where is the constitutional power to back such an offer? And making the offer opens the PM to the charge of wanting to ease the CJ out of office.

In the circumstances the population needs to know if those making the allegations against the head of the judiciary are diabolical and need to be themselves charged with criminal offences or if Mr Sharma cannot be allowed to continue his stewardship of this most vital institution.

If the mediation process was not allowed to get in the way, CJ Sharma’s right to seek judicial ruling could have been well on the way to being decided.

Incidentally, it goes almost without saying that it’s the right of the CJ to seek a court ruling on whether he should face the tribunal. A Chief Justice cannot be left open to being removed, even if temporarily, simply on the basis of an allegation, more so one made by a politician.

But perhaps the society was meant to see the serious deficiencies in our institutions through this dangerous bacchanal.

It is, for instance, interesting to hear lawyers argue that the Commissioner of Police sought merely to exploit a technicality in laying the charge against the Chief Justice. But isn’t that what lawyers do on a daily basis, ie, seek to exploit imprecision in the law, notwithstanding the excessively wordy and ponderous nature of legal language?

Maybe the argument is that such reliance on technicalities should not be an option for the State, given its coercive powers. The fact however that there was this scramble to expand the court order is evidence enough that it was flawed in conception and construction.

However, there must be concern about the CoP’s decision to proceed via the arrest route rather than through a summons and so allow the CJ space and dignity either come to court or seek a second blocking order.

It is understandable though that, not withstanding denials on both sides, the easy accusation is that the police were acting under political instructions to have the CJ removed from office.

On the other side of the coin, however, and Martin Daly is the only one amongst the lawyers not directly connected to have articulated a balanced position, the Government cannot pressure the judiciary into a corner. However, it cannot be that the CJ is being perceived to have got special privileges.

The morning after, a car park attendant wanted to know of me if he too would have the power to have a judge summoned to prevent the police from jacking him by the back of his pants, if they arrived at his door with a warrant for his arrest.

The Law Association as a body has failed the national community on this one, but maybe the association only has an interest to its members. Instead of providing impartial direction, the narrow interests of the client and the politics of the lawyers prevailed.

One of their numbers, Israel Khan, has charged too that Apan Jhaat politics, a colourful Hindi phrase used in British Guiana in the 1950s to mean “each one to his own race,” was at play. To balance off the racial contention, a politician/lawyer told an Indian radio station that the Government wants to instal a PNM judge of the CCJ, an Afro, as Chief Justice.

Then there was the curious defence of a conflict of interest charge against president of the association, Russell Martineau. Martineau said that notwithstanding the fact that he is lawyer to the CJ, he felt comfortable to chair the meeting that sought to decide on whether or not to have the AG face charges of contempt of court because it was a unanimous decision of the meeting.

There is another well-established way of proceeding in such matters: declare your self-interest, leave the chair and even the room.

And while saying he is not appearing for the CJ in the second matter, a statement from the judiciary says it was he, Martineau, who made the calls to Justice Jones on the evening of the attempted arrest on the criminal charges.

A few media houses too have come down on one side or the other, providing their audiences with contaminated reports and in a couple instances palpably biased opinions obscenely stated on the electronic media. However, the Newsday did provide a challenge to the right to privacy argument with the right-to-know tenet and in so doing instigated further information.

Ultimately, the courts and tribunal must disentangle this mess. And judgment cannot be allowed to hang interminably with such senior state and political officials involved.







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