The preset controversy involving removal of the Chief Justice
(CJ) has split the judiciary into three camps. You either
support the removal of the CJ or not and then there are a
few in the middle who are desperately trying to remain neutral,
wishing the whole thing would just go away or be handled in
a dignified manner.
This fragmentation of the judiciary has unfortunate political
overtones because the attempt to remove the CJ has become
a political issue because of mishandling of the situation.
The judiciary, like the legal profession, is but a by-product
and microcosmic reflection of our society and this issue has
shown that the institution of the judiciary as a whole is
not immune from the politics of the country.
There is the unfortunate perception that the President made
a clear blunder by appointing Roger Hamel-Smith to act as
CJ. Most people expected the neutral figure of Margot Warner
to be appointed; this because Hamel-Smith is embroiled or
is at the centre of the controversy and stands accused of
helping the Government in its attempts to remove
the CJ. Common perception is that Hamel-Smith was the one
that stood to benefit the most and some people have even gone
so far as to suggest that it was orchestrated to ensure that
he gets the wuk.
Rumours abound that the present administration did not want
to appoint Satnarine Sharma as CJ because Hamel-Smith was
its preferred choice. A joke twice would not have been nice:
Sharma was previously bypassed when Michael de La Bastide
was recruited from the private bar and catapulted straight
into the office of CJ.
To demonstrate its mistrust of Sharma, the Government has
been adjourning a Bill before Parliament that would allow
the Judicial and Legal Services Commission (JLSC) to increase
the number of judges. The CJ is the Chairman of the JLSC and
has an important say in the appointment of judges. There are
also quite a few crucial vacancies in the Court of Appeal
that need to be filled. Is there now going to be a mad rush
to use this window of opportunity to fill these vacancies?
Many in the profession are worried about the possibility of
political influence in the appointment and promotion of judges.
To be fair, in the same way people are calling for Sharma
to be presumed innocent until he is proven guilty, one must
equally presume that Hamel-Smith simply did what he thought
was right and acted in the best interests of the judiciary
and the administration of justice. It would have been easy
but totally wrong for him (as the most senior appellate judge)
to ignore the serious allegations made about the CJ.
There is no evidence that his actions were politically motivated
or that he is any friend of the PNM. Indeed, the
Government might very well find itself saddled with the very
thing it was trying to avoid: a fiercely independent CJ.
There are some who highlight the fact that Hamel-Smith headed
the panel in the appeal court that heard the Maha Sabha radio
licence case and did not order the Government to grant the
licence. All the court did was to order Cabinet to consider
the Maha Sabhas application within 28 days.
To his credit though, in referring the matter back to Cabinet,
Hamel-Smith did say that he could see no reason why the licence
should not be granted. And he was the only judge to boldly
say that one did not need to prove that there was an intention
to discriminate before you can prove that you were a victim
In effect, Hamel-Smith did and said all that he could to lead
the Government down the garden path of granting the radio
licence but did not cater for the kind of persistent discrimination
that obtained. He probably expected good sense to prevail
and for the spirit and tenor of the courts judgment
to prevail. He did not anticipate the exploitation of a loophole
in the order that did not deal the possibility that Cabinet
could consider the matter and still refuse the Maha Sabha
its radio licence.
This is the main criticism I have about that judgment. At
the end of the day, the court was prepared to find that my
client was indeed a victim of discrimination but that a weak
order would not give that which the discrimination deprived
my client of, a radio licence.
This is a strong government with a rampant sense of political
purpose and a strong and independent judiciary is our only
hope. The spotlight is on the judiciary. Time will tell how
it stands up to the money and power of the robust PNM. Over
to the Privy Council now.