Speaking Notes of MP Dinesh Rambally – Chaguanas West dated 26th October 2022
- On behalf of the Honourable Leader of the Opposition Mrs Kamla Persad Bissessar SC and my parliamentary colleagues I welcome all of you, members of the media and by extension the citizenry, to the Opposition’s weekly midweek press conference.
- I am happy to be joined by Mr Sean Sobers Attorney at Law, who, from time to time sits in the Senate, contributing to numerous legislative proposals.
- Ladies and gentlemen, my brothers and sisters, our country is in calamity. We have just had one of the bloodiest weekends in this country history and we are set to record the highest murder toll in our nation’s history.
- This Rowley led PNM Government has delivered the worst and most chastised budget ever. In fact, one my own constituents, Mr. Dwain Persad messaged me on my way down to this press conference to say that mention must be made of the high cost of living and the price of fuel in a country that has the ability to supply its own.
- The state of our country’s infrastructure is at its worst. Persons are being cut off from access to other parts of the country. Imagine this in 2022.
- Our independent institutions are being subverted at every turn.
- Now our justice system has been devastated by the worst scandal in 60 years.
- The Government is silent and refuses to respond. They are hiding behind the label “sub judice”. This is a principle which cannot avail them. There are no matters before the criminal courts! Attorney General you are misrepresenting yourself before the public worst than you did before the Miami Circuit Court. I must add that silence is the weapon of choice of dictators, of tyrants.
- I want to continue the discussion on NELSON GATE which, as I indicated at a previous press conference, is the biggest scandal in the history of our Independent Nation.
- Since Mr Sobers and I last spoke to you on this topic, several new developments have come to the forefront which continue to illustrate why this is indeed the biggest scandal yet.
- It is imperative that we continue to speak out and demand accountability over NELSON GATE as this scandal should never be allowed to die off as another seven day wonder. Why? Because it strikes at the very root of our democracy.
- Democracy is not another word that should be bandied about loosely. In fact it is critical to the promotion and protection of our basic constitutional rights. It impacts how we live, what quality of life we have in this country. It impacts on how freely we can talk. But most importantly, democracy provides a certain amount of social stability and a confidence in our democratic processes.
- Democracy, however, depends on the Rule of Law if it is to function effectively.
- Both the Rule of Law and public confidence in the administration of justice strengthen a democracy. These provide the foundation for the development of peaceful and prosperous societies. For these intangible but highly pervasive principles to be effective, there must be, among other things, (i) an independent judiciary, (ii) access to the courts, (iii) expeditious processes and determinations before the courts, and (iv) equality under the law.
- Let me attempt to show a practical application of how this works.
As citizens of Trinidad and Tobago we are entitled, if charged with a criminal offence:-
- to be presumed innocent until proven guilty according to law.
- to a fair and public hearing by an independent and impartial tribunal.
- 10.So, let me repeat that: if anyone of us is investigated by the police and then charged for an offence, we are innocent until proven guilty by a fair and impartial system of administration of justice.
IN THE REALM OF CRIMINAL LAW THE JURISPRUDENCE HAS ALWAYS BEEN THAT YOU ERR ON THE SIDE OF CAUTION AND IF ONE FAILS TO REACH THE HIGH STANDNARD OF PROOF REQUIRED (BEYOND RESONABLE DOUBT) THE COURT USUALLY ACTS CAUTIOUSLY AND PREFERS TO ERR ON THE SIDE OF CAUTION. AS SUCH THEY WILL LET A HUNDRED GUILTY MEN GO FREE RATHER THAN ONE INNOCENT MAN SUFFER. THIS IS A SETTLED PRINCIPLE LASTING THROUGH THE CENTURIES.
- 11.“IT IS BETTER THAT TEN GUILTY PERSONS ESCAPE THAN THAT ONE INNOCENT SUFFER” per William Blackstone in his seminal work Commentaries on the Laws of England published in the 1760s.
- 12.Benjamin Franklin said “that it is better 100 guilty Persons should escape than that one innocent Person should suffer…”
SO WHILST BLACKSTONE SAID TEN GULTY MEN, Franklin astonishingly went further to say 100 guilty men. It shows the care we must apply when it comes to the criminal justice system.
- 13.The citizenry has an interest and/or a right that if a person is charged for having committed a criminal offence, that the DPP who is prosecuting the offence, should enjoy prosecutorial independence and the accused person ought to be treated fairly according to law. Justice is accomplished when a person who has committed the crime is found guilty by way of due process and not otherwise. Once due process of law is followed, everybody is satisfied that someone should do the time, if he did the crime.
- 14.These are not my personal views. Our Constitution embodies all of these principles.
Let me quote for you a definition of “Rule of Law” from (World Justice Project Rule of Law Index 2021)
“Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of justice, opportunity, and peace-underpinning development, accountable government, and respect for fundamental rights. Traditionally, the rule of law has been viewed as the domain of lawyers and judges. However, everyday issues of safety, rights, justice, and governance affect us all; everyone is a stakeholder in the rule of law.”
- 15.It was John Locke in the “Two Treatises of Government (1689)” who said “Where-ever law ends, tyranny begins.”
So let us now examine what is happening in our own country. And we start with the question:
- 16.Did AG AL RAWI pervert the course of justice and/or did Al Rawi and other Members of the Cabinet conspire to pervert the course of justice?
Ladies and gentlemen, perverting or obstructing the course of justice simply means interfering adversely with the proper administration of justice.
- 17.We have called upon the Trinidad and Tobago Police Service, the Acting Top Cop, to show their independence and to investigate whether there has been the commission of wrongdoing by former AG Al Rawi and other members of the Cabinet. We have also already called upon the Police to take the necessary steps to preserve sources of evidence including seizing cell phones, laptops, ipads etc. (there is an article)
We hereby call again upon the police service to their jobs in the interest of the citizenry.
Where are your investigations? Is it that Mr Jacobs does not want to jeopardise his chances of being appointed the next Commissioner of Police.
Is it that the Police Service is now the private army of Dr Rowley and the PNM.
Why isn’t the Police Service seeking assistance from London experts to guide them with the Nelson Gate scandal.
What is really going on in this country?
- 18.The police service must investigate:- (i) whether the conduct of Al Rawi and other members of the Cabinet including the Prime Minister, surrounding the entering of the Indemnity Agreement was tantamount to an inducement to Nelson to plead guilty; and
(ii) Whether Al Rawi engaged in conduct which was improper and which interfered with Nelson’s free choice to plead guilty or not guilty. (We all recall and it is settled that AG AL Rawi had no business with negotiating with Nelson. Issues of plea bargaining fell squarely upon the shoulders of the DPP).
- 19.(iii) The police must further investigate whether Al Rawi’s conduct constituted harassment of Nelson, or other improper pressure upon Nelson or more importantly whether there was wrongful interference with Nelson so that his participation in the administration of justice became tainted or polluted. There will have to be a full investigation into the conduct, promises or benefits that were offered in the Indemnity Agreement in consideration of Nelson pleading guilty.
- 20.In relation to the interactions with Nelson, offers of assistance by AG Al Rawi who was acting outside his constitutional remit and interfering in the role and functions of the DPP, can hardly be described as legitimate inducements.
- 21.AG AL Rawi’s offer to pay (at tax payers’ expense) all of Nelson’s legal expenses in consideration of his guilty plea and offer to testify against political opponents reeks of jittery enthusiasm and is an interference with the course of justice. Such an offer and/or consequent agreement has the tendency to interfere with the accused’s freedom of choice and seeks to serve an interest other than those of the accused, as well as the public’s interest in having the prosecutorial independence of the DPP preserved.
WERE ATTORNEYS AT LAW WHO WEREACTING AT THE BEHEST OF AL RAWI, COMPLICIT IN PERVERTING THE COURSE OF JUSTICE?
- 22.Mr. Israel Khan SC has called upon Mr Gilbert Peterson and Mr. Douglas Mendes to clear the air.
- 23.According to newspapers reports, Mr. Khan SC asked, “if you my learned friends, knew of all the facts and circumstances and ramifications of this agreement then staring both of you right into your faces and looping over your heads are joint charges of Al Rawi, Mendes and Peterson of conspiracy to pervert the course of justice, interfering with the administration of justice and obstructing the administration of justice.”
- 24.So Mr. Khan SC has actually referred to a potential situation of a conspiracy involving the Attorneys at Law who advised and/or settled the Al Rawi/Nelson Indemnity Agreement.
- 25.I want to go a bit further to examine, not only whether there is a conspiracy to pervert the course of justice, but whether there is an all-out conspiracy to cover-up unlawful wrongdoing and/or deflect culpability of members of this PNM government and/or silence the population on an obvious assault against democracy and the rule of law.
- 26.Duties of the Legal Profession in advising on matters of public interest
- 27.The duties of the Attorneys at Law advising the Attorney General and any other member of the government includes an active duty to protect the proper functioning of law and justice in our society. These Attorneys are free, and on some occasions even obliged, to promote legal viewpoints and policies differing from those which ministers of government perceive to be in their immediate political interests.
- 28.The Attorney’s role is not to obtain for them whatever the minister/client wants. The Attorney at Law should not become a gunslinger for hire. Rather, the Attorney at Law should help his client pursue the conception of the good within the bounds of the law.
- 29.That Attorney at Law must engage in good-faith interpretation of the law determine the difference between what the law provides and what the law can simply be made to give.
- 30.The Attorney at Law cannot be a politically compassed technocrat, ignoring the meaning of the law, interpreted reasonably and in good faith. He must not engage in quasi-legal subterfuge.
- 31.How could attorneys at Law advising Al Rawi, ignore substantive principles entrenched in our Constitution such as the state may not act against individuals without legal authority, that the law must be applied in a way that is procedurally fair, and that the DPP is solely responsible for criminal prosecutions.
MILLIONS CONTINUE TO BE DOLED OUT TO ATTORNEYS AT LAW
- 32.While Shylock of Trinidad, Vincent Nelson who was last seen laughing all the way to the Bank, is now suing the State of T&T for some $100 Million, certain Attorneys at Law affiliated with the present PNM regime continue to rake in tax payers dollars despite this entire Nelson Indemnity GATE fiasco.
SILENCE BY EVERYONE
- 33.Have you noticed that since the collapse of the criminal case against Ramlogan/Ramdeen, the country has been the recipient of only one retarded press conference by former AG Al Rawi? PM Dr Rowley has only brayed on a couple platforms that we should not bother him with anything to do with Nelson. Minister Young posted minimal self-serving information seeking to distance himself from the entire Nelson GATE affair.
- 34.Amidst this silence of members of the Government, we have silence of the Senior Counsel involved in the unlawfully conjured Indemnity Agreement.
- 35.Senior Counsel who drafted and/or settled the Indemnity Agreement is now representing the State in the civil proceedings brought by Nelson
The integrity of the unlawful Indemnity Agreement instigated by then Attorney General Faris Al Rawi and drawn up by Senior Counsel Mr. Mendes continues to be of paramount concern. Questions arise as to the propriety of the Attorney General literally raining on the DPP’s parade in relation to the latter’s role over criminal matters as evidenced by the agreement itself.
- 36.The Attorney General’s defence Counsel continues to be Mr. Mendes SC in litigation raised by Mr. Nelson KC for breach of the agreement. You have one man advising, drafting, and doing every conceivable as well as inconceivable thing. An important question that arises is whether Mr. Mendes SC is the proper Attorney to advise on the propriety of the agreement in the given facts and circumstances or whether independent legal advice from one of the many other eminent Senior Counsel in this jurisdiction or outside ought to have been sought.
- 37.Surely, Mr. Mendes SC being conflicted as it were is not the proper person to advise the Attorney General on these matters. On any view the facts suggest here that Mr. Mendes SC is too intimately connected to the facts of the case on issues that are not merely formal matters. This is a case where Mr. Mendes SC’s appearance as a witness might be necessary.
- 38.The fact that he drafted the questioned agreement and continues to act as Counsel is extremely concerning. There is abundant evidence of obvious conjugality to the Attorney General’s case that would appear to affect his ability to impartially present the facts and law of the case for the Court’s determination.
- 39.His continuing to act for the Attorney General would amount to a breach of Clause 35 Part A, Third Schedule of the Legal Profession Act (“The Code of Ethics”).
Clause 35 Part A of the Code of Ethics provides as follows:
“An attorney at law shall not appear as a witness for his own client except as to merely formal matters or where such appearance is essential to the ends of justice.
If an Attorney is a necessary witness for his client with respect to matters other than such as are merely formal, he should entrust the conduct of the case to another attorney of this client’s choice.”
- 40.The rule is not prohibitive of an attorney appearing as a witness for his own client. An attorney can appear as a witness as to merely formal matters. In the instant case, however, Mendes SC’s potential evidence is caught by the rule.
- 41.A paradigm case of an attorney crossing the line is discussed in the Judgment of Kokaram J in Judgment Claim No. CV2008-00560 HOSEIN’S CONSTRUCTION vs. 3G TECHNOLOGIES.
- 42.Again the Law Association ought not to be silent on whether there is a real risk here of Mr. Mendes SC offending the above Rule in the Code of Ethics. Objection ought to be raised and addressed promptly.
- 43.No aspersions are cast upon Mr. Mendes SC. But these are all matters which are known to him as an Attorney at Law. The bigger picture here is the interests and welfare of the public. There has already been seriously unlawful missteps leading to the collapse of criminal proceedings. Unlawful engagement by AG Al Rawi with Shylock Nelson has already cost the State millions of dollars and the legal bill continues to mount with the Civil proceedings presently before the Courts.
- 44.In the meantime, you have waning confidence in the administration of justice. Do you, members of the public, honestly believe that an accused person can have a fair trial free from interference? Those of you who belong to the political arena- Are you fearful of trumped up charges and political persecution by this Rowley/ AL Rawi led regime?
(oaths of office)
Sub judice principle
RESPONSE TO AG ARMOUR SC
Ladies and gentlemen, why are we not hearing from the AG and the PM concerning what we are reading in the media? The information begs many obvious questions. The information points to conduct unbecoming of an Attorney General, unbecoming of a person who holds high public office. The unrefuted information which has been corroborated points to a breach of the ethics of the legal profession and the Rule of Law. The information, ladies and gentlemen point to a clear erosion of the confidence which people have in the administration of justice.
Offering no comment on the basis of the sub judice rule, when the facts are already clearly in the public domain, is not an option. Hiding behind the fact that there is some appeal pending is not serving the best interests of the people.
Now lets turn to the sub judice rule.
In the criminal justice system a defendant’s guilt should only be decided by those lawfully appointed to determine it.
Such a decision should be based only on admissible evidence presented in court, that is to say, evidence that is reliable and reflective of factual reality.
Media publications about an ongoing legal proceeding can potentially undermine the administration of justice. So, if the Media publishes untested and hearsay anecdotes, these may influence the memory and mental evaluation of future witnesses connected to the case, making it, in essence, doubtful evidence. Justice cannot run that risk.
One cannot put a defendants right to a fair trial at risk, nor the presumption of innocence, fo that matter, These are critical to the rule of law.
So the sub judice rule essentially means that the conversation on matters before the court must stop, if it is likely to run the risk of prejudicing these rights.
‘Sub judice’ is also a parliamentary convention, and a practice that has developed in the interaction between media and public officials.
Essentially it is “No comment, the matter is before the courts.” The self-inflicted, so called vow of silence.
How often does this statement accompany a media report or press coverage where alleged wrongdoing by this PNM Government is involved?
Why should the existence of litigation excuse the Attorney General and the government from accounting for their actions?
Why should the public be content with this (non) answer?
I want to ask you today, whether the decision by the Attorney General to refuse to answer pointed questions by the media and the public, is based on a legal rule or duty, or mere political convenience?
1. Is he a defendant in criminal proceedings before the Court?
2. Is the Republic of Trinidad and Tobago a defendant in criminal proceedings before the Court?
3. Has the media, or members of the Opposition commented on the merits of criminal proceedings existing before the Courts?
4. Has anyone commented on the evidence being presented or to be presented before the Courts?
5. Is Prime Minister Rowley and his AG Armour saying that what we say here in discussing these critical matters going to affect or influence a judge or court in Miami?
So exactly where does any ‘sub-judice’ rule or principles arise? It simply does not arise.
Ladies and gentlemen, in our democracy there are important interests such as freedom of speech which is the most important consideration that must be balanced against other important principles and interests. Freedom of speech is the central basis of every democratic society so much so that it enjoys constitutional protection.