Dear Editor,
When the Privy Council handed down its ruling this week that the case against the accused in the Piarco 1 matter was flawed and had to be restarted, if at all, there was the apoplectic reaction in some quarters. Some immediately began castigating the Privy Council as a remaining vestige of our servitude to our colonial masters and calling for its immediate replacement by the Caribbean Court of Justice. Others inferred that it was a tainted judgment not likely to have been delivered if the case involved the misappropriation of monies of the British government. For others, this was yet another case of miscarried justice and/or a poor ruling.
Few appear to have actually read the judgment of the PC. The Law Lords did not declare as to the guilt of the defendants. They simply upheld the submission by appellants Smith and Gomes that the conclusion of our local Court of Appeal that there was no apparent bias in the ruling of Chief Magistrate Sherman Mc Nicolls was erroneous. Mc Nicolls, they stated, should have recused himself in the matter after being asked to do so. Mc Nicolls, they concluded, was ‘hopelessly compromised’ in the matter given his involvement in the case against Basdeo Panday (thrown out by the local Court of Appeal), his allegations against Chief Justice Sat Sharma (also thrown out when he refused to testify in the criminal matter), and his testimony in the impeachment hearings against Sharma where the latter was cleared of wrongdoing.
The Privy Council also commented on the telling interventions of then Attorney General John Jeremie who assisted Mc Nicoll in the resale of land to CLICO that was at the heart of the Panday matter: ‘It is not difficult to imagine his gratitude. He has the AG to thank for resolving his serious financial problems and for shutting down an investigation into his reprehensible conduct.’ The Judicial and Legal Service Commission had brought disciplinary charges against McNicoll, but he was allowed to retire before the matter was resolved.
As another colleague of mine has pointed out, ‘the people of this country have been deprived of the opportunity to bring these Defendants to justice…due to the fact that the public interest, the administration of justice and the rule of law were sacrificed upon the altar of malice and political spite.’ He noted that the appellants considered UNC financiers were themselves previously PNM financiers. Which, of course, raises yet another concern about how national policies and actions are decided not by the electorate but by the money behind the scenes, which is itself proper cause for concern.
So, twenty years later, it now has to be decided whether in the matter of Piarco 1, the state, via the Director of Public Prosecutions, is prepared to launch yet another preliminary inquiry into the matter. One of the defendants has also now indicated that he will be filing for malicious prosecution; the others may well do so. In the related Piarco matters now before a US court, our current Attorney General has shoddily allowed himself and the US Law Company pursuing the matter on the government’s behalf to be disqualified from appearing before the court and has further muddied his waters by the weak explanations he has since offered.
What citizens may need to recognize from these developments firstly is that the enormous funds being expended on these legal proceedings do not come out of some private governmental stash but out of taxpayer funds. Which is why cases such as the ones the current government appears to be losing with impunity need to be prepared with watertight evidence and objective consideration of the potential outcome(s).
It is also imperative that cases cannot and should not be prosecuted when motivated primarily by political motives or out of malice. There is, as a colleague has pointed out, no burden of proof criteria or rigorous application of the rules of evidence on a political platform. But, having prosecuted and convicted political enemies on the campaign trail, elected governments are now faced with the challenge of finding ways to satisfy an electorate they have made thirsty for ‘justice’ and a conviction.
Former Central Bank Governor Jwala Rambarran recently mounted a successful legal challenge to the current Minister of Finance’s decision to remove him from office. That Minister also subsequently wrote to the G24, the Inter-Governmental Group on International Monetary Affairs based in Washington, which may have resulted in Rambarran’s failure to secure a position as Senior Economic Adviser there. The contents of Imbert’s letter are still unknown.
The UNC civil prosecution of Malcolm Jones et al in Petrotrin, Ken Julien, Rene Monteil and Eugene Tiah et al at eTeck also all ‘have the look, touch and feel of malicious prosecution for PR purposes, using foreign QCs to give ‘’favourable opinions” ‘, one observer has noted. No one can yet explain why there has been no attempt by either PNM or UNC governments to properly bring charges against Calder Hart, if indeed there is substance for any such charges.
In a well-researched paper presented in 2021, titled Judicial Conduct in the Caribbean, Terrence Farrell argued that public confidence in a Judiciary may be affected by Delay, Bias, Internal Administrative and Opinion Conflict, and Personal Conduct. Bias, in particular, comes in several forms; he notes that in Trinidad and Tobago, ethnic and political bias are clearly factors at play, although empirical evidence for them both is difficult to establish. He points to the case brought against Chief Justice Sharma which collapsed in court.
Peeved apparently at the outcome of these proceedings, then Prime Minister Patrick Manning insisted on appointing a tribunal (including, interestingly, Dennis Morrison QC of Jamaica, who has recently resigned from the Commission of Enquiry into the tragedy of the Paria divers) to consider whether Chief Justice Sharma had violated the Integrity in Public Life Act. That Tribunal found no basis for removing the Chief Justice.
‘Political influence,’ Farrell writes, ‘is particularly pernicious as it trenches directly on judicial independence. Influence usually runs from the Executive to the Judiciary so that the Executive gets its way in litigation…Judges are seen to get something in return, promotions or honours, where these are the gifts of the Executive.’ It is not surprising, he avers, that public confidence in the local Judiciary is low in the circumstances, given the ethnic and political considerations at play.
Which leads inexorably to the Caribbean Court of Justice, and the paradoxical position Trinidad and Tobago currently enjoys, having championed the cause and being the seat of the said Court, yet retaining the Privy Council as its own final court of appeal. Martin Daly, as quoted by Farrell, has said that ‘the rejection of the CCJ is a function of low public trust and confidence in our institutions and deep-seated fear of relationships and hobnobbing with regional politicians.’
Mariano Browne has identified four arguments advanced by those who are not inspired to support the CCJ. First, he says, it would lack independence or be biased and open to manipulation. Secondly, he believes, public opinion is that ‘local jurisprudence is not sufficiently robust’, suggesting a lack of expertise. Thirdly, there is a post-colonial tendency to attribute elevated status to foreign jurisdictions ahead of our own. Finally, he says, ‘those of Indian heritage fear that a largely black Caribbean court would suffer from conscious and unconscious bias.’ Politically motivated cases, it is also suggested, may eventually clog the CCJ as much as they currently seem to clog the local courts.
This latest decision by the Privy Council has not surprisingly found adherents on both sides of the argument. Those who advocate retaining recourse to the PC point to its freedom from the taint of local politics; those who would see the PC replaced entirely by the CCJ maintain that the latter would be more attuned to local conditions and their nuances.
There is much that can be argued in favour of a Caribbean Court of Justice. It is clear however that we have a long way to go before the requisite confidence in an independent judiciary is satisfactorily restored enough to make the transition from the perceived remoteness – and political distance–of Britain’s Privy Council to a Caribbean Court of Justice comfortable to all. As some have asked, however, who will identify when we do arrive at such a moment, if ever?
Ken Jaikaransingh, former Managing Director, Longman Trinidad Limited has been listed as a noteworthy Publishing Company Executive by Marquis Who’s Who
Commentary by
Ken Jaikaransingh
June 30, 2022