After some ten weeks, the Mustill Report has been presented
to His Excellency, the President, and in its wake we are told
that Chief Justice Sharma is returning to hold the office
from which he legally retires in January, 2008.
The tribunal appointed to investigate the allegations made
by the Chief Magistrate (CM) against the Chief Justice (CJ)
(of interference in the Panday trial) found that there was
insufficient material to justify recommending that the Chief
Justice be removed from office.
What exactly does this mean?
Is it that the CJ was correct and there was a conspiracy against
him? Has he been vindicated? Was the CM shown to have been
deceitful or open to influences?
And what of the criminal charges that fell flat when the CM
refused to testify?
The picture
All of these questions were addressed by the tribunal in its
57-page report. At the outset, when specifying the scope of
the enquiry, the tribunal comments: “The picture presented
to this tribunal almost defies belief.”
The report itemises the following as part of the picture:
“Contradictory accounts given by the CJ and the CM, on
oath, of various meetings which discrepancies could not be
explained away; counsel for the CJ publicly accused the CM
of having been bribed to mis-try criminal proceedings against
Mr Panday; and the battle of press releases by the CJ, the
CM and the AG, ‘the three protagonists.’
“The air was full of ‘rumour, innuendo and gossip’
around and across a deep political and ethnic divide.”
The report recognised that there might be an expectation that
the tribunal should lift the lid of public life in T&T
to discover what was going wrong, and propose some means of
improvement.
Its members, however, were clear that their mandate did not
go beyond the presidential appointment to enquire into whether
they should recommend removal of the CJ for misbehaviour.
The findings
In the event, the tribunal found that the allegations made
by the CM against the CJ were not proved. The evidence just
was not enough to make the tribunal sure beyond reasonable
doubt that they were well-founded.
In that light, therefore, the tribunal was bound to recommend
that the matter should not proceed to the Privy Council.
The tribunal did so recommend, but not before it had dealt
some parting salvos to the chief players in the sorry spectacle.
The prosecution
The report states that in 2007 all was set for the continuation
of the prosecution of the CJ. The prosecution had filed 17
statements between January and February.
Then an “extraordinary sequence of events” took
place when the CM, whose statement had set the whole process
in motion, began to have second thoughts about the advisability
of having both criminal and impeachment proceedings on the
same material.
If he had done no more than express this view to the prosecution,
there would be nothing to criticise. But he did not do so,
and on the day set for hearing the prosecutor told the court:
“Having regard to the position indicated to us by this
witness, we are adopting a particular course in this matter.
We are not proceeding any further.”
The tribunal was highly critical of this manner of disposing
of the case adopted by the prosecution, saying it was impossible
to make sense of it.
In a case of such public significance, at least the prosecutor
could have offered a public account of what was going on.
They felt the public deserved an explanation as to why the
CM was not testifying.
The Chief Magistrate
The tribunal asserts that because the CM may have to give
evidence on his own behalf (in his own disciplinary matter),
they would be reticent about their comments.
Nonetheless, they found it inexplicable that more than four
weeks after he had made his complaints to the AG the CM had
taken no steps to embody them in a statement.
While they rejected the suggestions by the CJ’s lawyers
that the CM may have been motivated by desire for retaliation
and/or a need to deflect from his own alleged improprieties
to lay complaints against the CJ, they, nevertheless, found
that the whole subject of the CM’s conduct was “shrouded
in mystery.”
One such element was why he changed his mind about testifying
in the criminal matter. They also found his accounts of meetings
with the CJ unconvincing. They could make neither head nor
tail of the persona of the CM.
The Chief Justice
In contrast, the tribunal had no difficulty in making an assessment
of the character of the CJ. In respect of his conversation
with Cassell on the Panday defence, they said:
“It is much less usual for the senior judicial officer
to discuss with a senior prosecutor, however informally and
briefly, an aspect of a pending prosecution,”and deemed
this a reflection of his “tendency to speak without reflection.”
The report speaks of the “intemperate” press releases
of the CJ and the “overheated terms” of his complaint
against the CM to the commission.
While the tribunal termed the CJ’s conduct simply “not
without blemish,” their conclusion, after itemising critical
aspects of his behaviour, was:
“All of these combined, with the impression gained during
his oral evidence, to suggest a propensity to speak and write
more freely than was wise, without a balanced sensitivity
and distance which should be the hallmarks of a senior judge.”
Conclusion
Reading the report with a discerning eye, one can almost see
the commissioners’ eyebrows raise in reference to rumours,
innuendos, a battle of press releases, the lack of confidentiality
in matters involving public officials, and the lack of appreciation
that the integrity of pending judicial matters should be safeguarded.
They made it clear that those involved in the administration
of justice should possess discretion and balance, and speak
only after reflection.
This is, perhaps, applicable to the wider society.
MERRY CHRISTMAS!
