Delivery of the written judgments by the Court of Appeal in
Magisterial Appeal No 75 of 2006 of Basdeo Panday vs Wellington
Virgil has been much anticipated, given the charged atmosphere
of the day.
While most arguments in and out of the court have tended to
generate more heat than light, it is a rather sobering and unemotional
piece of jurisprudence.
What emerges clearly was that there was no pandering to Pandayism.
Pandayism, as we have all come to know it over the years, consists
of painting everything as being about race, colour, creed and
class to suit the political exigencies of the day.
In particular, in respect of this matter, there has been a concerted
attempt by some to portray this scenario as being about political
oppression and victimisation.
They have also sought to display it as being about racial discrimination,
with claims of plots and counter plots and allegations flying
left, right and centre, about what the Prime Minister did or
did not do, and what the Attorney General did or did not do.
Same brush
And, of course, we all know for sure what the Chief Magistrate
did, and we equally know as well, what he did not do.
The unfortunate effect of lumping all of this up into one big
gooey ball of slime is that there is the temptation to tar and
feather all players with the same brush.
And as we so often do here in T&T, we brand them all as
being part of the grand collusion and conspiracy and besmirch
and sully all characters with a broad brush.
Fortunately, the Court of Appeal has cut to the chase and avoided
most of these socio-politico-legal pitfalls and has played it
straight down the middle.
Though each judge delivered a separate judgment, it is fair
to say that they were, in substance, at consensus ad idem on
the salient points, and came to common conclusions as to the
role of all the players in this modern-day melodrama.
The court made it abundantly clear that its decision was with
regard to the preliminary issue argued before it, on the issue
of apparent bias, and that given the circumstances as played
out with the Chief Magistrate, a reasonable, fair-minded person
may have apprehended that there might have been the appearance
of bias in the tribunal comprising of the Chief Magistrate.
This may, therefore, be at the foundation of the fact that the
case was sent back for retrial before another magistrate.
Let us not forget that the case is set to start over again,
as there has not been a determination of guilt or innocence.
Much has been made of the interactions of the parties outside
of the actual hearing of the case.
These interactions involved conversations between the Chief
Magistrate and the Chief Justice, and the Chief Magistrate and
the Attorney General.
The appellant, through his counsel, sought to condemn in no
uncertain terms the action of the Attorney General and in many
ways sought to make this appeal about the Attorney General and
politics.
Much was made of the fact that the Chief Magistrate found it
necessary to lodge his concerns and misgivings with the Attorney
General and of the role the Attorney General played subsequently.
Despite these efforts to shift the focus to the Attorney General,
it is instructive that the court found it necessary to address
this issue by clearly suggesting that the Chief Magistrate had
little choice but to lodge his complaint with the Attorney General.
Justice of Appeal Archie, at paragraph 35, was painfully clear
when he said that “Given the existing constitutional and
institutional arrangements, however, the conduit utilised by
the Chief Magistrate for registering his complaint cannot, by
itself, be the subject of criticism, so far as the question
of bias is concerned.
He would have had little choice.
Clearly, in the court’s opinion, the fact that the Chief
Magistrate lodged his concerns with the Attorney General was
not in and of itself sufficient to suggest bias or apparent
bias.
According to the learned judges, it was the Chief Magistrate’s
omission to inform the appellant’s counsel of his concerns
that created the circumstances for the fair-minded observer
to apprehend apparent bias.
Nothing wrong
The appellant also sought in his arguments, through his counsel,
to suggest political interference on the part of the executive
through the Attorney General, having regard to the events that
unfolded.
Mr Justice Archie, also at paragraph 35, found it important
enough to state that: “In all of those circumstances, it
was not inappropriate or indicative of bias for the Chief Magistrate
to have spoken to the Attorney General. There was no breach
of the doctrine of separation of powers.”
The Pandayists have tried from the beginning to make this about
the Attorney General, when from the learning of the Court of
Appeal, it is clear that it was the failure of the Chief Magistrate
to properly report his concerns, and the fact that he had lodged
these concerns with the Attorney General alone, and not also
to the appellant’s counsel, that created circumstances
to apprehend apparent bias.
The Chief Magistrate’s subsequent refusal to give evidence
in the criminal trial against the Chief Justice, of course strengthened
that apprehension of apparent bias.
This was not, in the judgment of the Court of Appeal, about
wrongdoing on the part of the Attorney General, and he has been
quite vindicated by the judgment, or to paraphrase the expression
recently used by the Chief Justice, there is nothing to be vindicated
about, if you have done nothing wrong in the first place.
Let us not forget that the criminal charges against Mr Panday
still stand and have been sent for retrial, and for the conduct
of that retrial, let there be no pandering to Pandayism.
