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One of the pillars of the administration of justice is the principle that open justice is fundamental to the rule of law and democratic accountability. That principle reaches its highest expression in judicial review cases and constitutional motions.
The whole purpose of such cases is to put the processes by which the State and its various arms arrive at decisions under the scrutiny of the Courts. Such scrutiny is necessary in circumstances where it appears there may have been maladministration.
(Copyright Trinidad Guardian)
Before Mr Justice Harris is the judicial review application of Marcia Ayers-Caesar against the Judicial and Legal Commission (JLSC) to which the Attorney General is also a party. This application will test whether Marcia’s resignation as a judge was legally effective. Happily, contrary to what had been floated in the media, there will be no secret trial of this judicial review application.
In order to proceed with her case, Marcia will first have to receive the leave or permission of the Court to do so. That initial decision is two months away.
Unhappily, the persons involved in the 53 cases left part-heard were largely being ignored by the authorities. As an editorial in the Trinidad Express newspaper on last Thursday emphasised, the potential for damage to confidence in the judiciary as a whole is very real—as I have been saying all along.
Now the Attorney General has come up with a legislative plan to attempt to salvage the situation. At least somebody is trying something but the sad fact is that those who caused the disaster have refused to take any responsibility.
As also pointed out in the editorial, there “should be the holding to account of those responsible for landing T&T in this mess”—as I have also been insisting from the outset, regardless of the derision towards to me from a few haters.
Better to receive some derision than to remain spinelessly silent.
It is not possible in this column to critique the proposed legislation in detail. Let us hope, however, that no disconnect emerges between the contents of the legislation and what the Courts decide in Marcia’s judicial review application.
It is imperative, therefore, that the Attorney General does not blow hot and cold on the urgency of the situation. There is an inconsistency between going to Parliament urgently with the legislation but permitting the judicial review case to move at a leisurely pace.
As indicated, the leave stage of the application is two months away from a decision. There has to be equal urgency between the legislative action and the Court action.
There was other disturbing news from the Courts last week. The Industrial Court awarded a hefty sum of damages to a dismissed worker. Such is the impotence of the State in the face of banditry that an application was made to withhold the identity of the successful litigant for fear that she might be targeted by criminals.
This is disturbing but perhaps understandable when the police high command wish to relegate the assessment of the performance of the Police Service by reference to its abysmal detection rate.
(Copyright Trinidad Guardian)
On the other and positive side of Trini life, I can confirm that our creative talents have become even sharper. I refer to the BIG 5 Concert held in the Savannah two Saturdays ago.
Let me first disclose to readers that, along with some others, I have been asked to be an adviser to the group. I do not consider that such an engagement disqualifies me from commenting on the concert. That is part of what advisers do, especially when they have a long declared and passionate love for the steel orchestra.
It must be acknowledged there were some problems with the sound and the quality of the live stream. The major significance of this concert was its demonstration that five bands could play with a start time of 7:00pm and finish before 11pm.
I readily appreciate that the logistics of Panorama are quite different. However, the pleasure that the audience took in hearing five bands with varied repertoires in a reasonable space of time must compel us to re-arrange Panorama so that only prime bands play in prime time.
This concert also confirmed the full orchestral capability of the bands in that they can integrate other musical instruments with the steel pan and regularly perform with accomplished singers.
(Courtesy Sean Morrison/Wired868)
We have to do some work on our concert etiquette. There were many conversations taking place while the bands were playing. These conversations were audible when gentler pieces of music were being played.
In a perfect Trini paradox, part of the audience were unhappy with the conductor of Trinidad All Stars turning around and attempting to wait for silence before playing a classical piece in an outstanding fashion. Yet when the piece was finished, it was lustily applauded.
Even though beleaguered by horrible problems, Trini good yes.
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There are a number of interesting constitutional issues arising out of the JLSC situation, not only with Marcia but also with the Dumas judgment from the Privy Council. People must remember that these go hand-in-hand. This affair is more complicated than it looks – as a closer examination will unfold.
Let us examine the Dumas challenge to the composition of the JLSC. I have written before:
[quote]If the composition of the JLSC is ultra vires (meaning outside of the law) then it means that it did not have the legal authority to make decisions. Any decisions made during the period it was illegally composed would be thus illegal in themselves. A careful examination will reveal that any appointments, promotions et cetera would be void. These decisions would number in scores if not hundreds and would affect appointments in both the judiciary as well as the public service.
In turn, any decisions taken by those so appointed will be void as well. So, any judge or magistrate so appointed will not have the legal authority to hand down judicial decisions. Over the past several years this would number possibly in the thousands or in tens of thousands. Any such decision handed down can, therefore, be challenged in the courts which would further be burdened with expense and time bottlenecks. Prisoners who were found innocent or guilty during this period would challenge decisions; to be retried in the former and sentencing in the latter.
Think of thousands of people applying for judicial review in a matter of days or weeks… The sheer scale of incompetence in this fiasco is mind blowing. This is the nature of the beast and is the best reason that the Chief Justice must resign. Because, after all, this was knowledge that he possessed at the very beginning and should have protested the illegal appointments to the JLSC of those who were unsuited. [/quote]
Therefore, it would seem that Ramesh L Maharaj and his client Marcia, are jumping the gun so to speak. Because in the end, if the JLSC was illegally constituted at the time it “appointed” her, then her judicial review will fail on the basis that she was never a judge, and cannot be entitled – or even fired from – something she never possessed in the first place. It stands to reason then that even if she “wins” her judicial review case, that decision will most likely be declared null and void upon determination of the Dumas challenge.
A legislative solution as proposed by the Atty Gen is another example of adding mud to the already murky soup. Will it really solve anything? I sincerely doubt that, as the original problem still lies, and remains unsolved. Legislation passed will not only affect the 53 persons affected in this fiasco, but potentially any others in the same situation – what applies to one applies to all. Just another example of not appreciating how the law functions,by the Atty Gen and his advisers.
Again, I see that the people (the population as well as government members) do not truly understand this scale of the incompetence shown by the JLSC. The resignation of the members of said body on “personal grounds” hardly justifies or solves the mischief it created. Repercussions from this will continue from now to years to come, and lawyers will be laughing all the way to the bank.
The Acting Chief Magistrate is the Next Fall Guy/woman.