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Mistrust, politics enter the Judiciary

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 Sabha’s 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 of discrimination.

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 court’s 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.

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