By The Hon Dinesh Rambally, MP, Chaguanas West
…Bombshell Breach In Separation Of Powers As Senior Judicial Officer Seemingly Succumbs To Political Instructions In Flagrant Violation Of Constitution
THE Judiciary is being shamelessly compromised and the separation of powers is boldfacedly breached as a senior judicial officer has allegedly succumbed to taking chain up by following cheap political instructions in flagrant violation of the Constitution.
The bombshell allegation was made by Chaguanas West MP and Legal Advisor to the Sanatan Dharma Maha Sabha Dinesh Rambally, who has raised a series of critical questions about the engagement of Judiciary staff in a politically expedited process to pardon 60 prisoners on the 60th Anniversary of Independence.
In a media release issued today, Rambally reminded that: “The Judiciary is not part of the constitutional process for pardoning prisoners.”
It therefore ought not to play any part in the process of determing whether to pardon offenders.
He stressed: “The Rule of Law demands that institutions respect the Law. The Constitution is our supreme law and it is therefore important that the various procedures detailed in it are followed.”
According to Rambally, sources indicate that certain instructions were given to the Judiciary through which some of its staff members were mandated to assist with an ongoing ‘Mercy Committee’ project during the week of August 08, 2022.
It is alleged that approximately 13 Judicial Research Counsels (JRCs) in conjunction with the Registrar’s Office have been allegedly sifting through court files with a view to compiling a list of eligible persons to be recommended for pardon.
Some of the persons involved in this process apparently contracted Covid-19 and as a result there was a temporary suspension of in-person activities at the Hall of Justice, until August 22.
Rambally explained that the power of pardon is governed by the conjoint effect of sections 87, 88 and 89 of the Constitution which provides for the President of the Republic to act on the advice of a Minister designated by him acting in accordance with the advice of the Prime Minister.
An Advisory Committee (or Mercy Committee) will advise the Minister and the President on the exercise of the power.
The Advisory Committee on the Power of Pardon shall consist of:
(a) The Minister referred to in section 87(3) who shall be the chairman (designated by the President);
(b) The Attorney General;
(c) The Director of Public Prosecutions;
(d) Not more than four other members appointed by the President, after consultation with the Prime Minister and the Leader of the Opposition.
The structure provided for under the Constitution involves a framework in which the executive must consult with the Advisory Committee (Section 88) which will provide recommendations in instances where offenders have not been sentenced to death.
Where an offender has been sentenced to death, a written report shall be solicited from the trial judge together with such other information derived from the record of the case or elsewhere as may be required for consideration (Section 89).
Rambally said the Judiciary must not only be an independent institution, it must also be seen as such.
“Without an established transparent protocol for interactions between the Executive Arm of the State and the Judiciary, any random communication between these two can amount to an obvious breach of the separation of powers.
“The administration of justice depends upon the separation of powers. Confidence in both these concepts are fundamental to our democracy,” Rambally said.
He added: “If the Judiciary has been conducting the exercise highlighted above, it would be placed in a most precarious position should offenders seeking pardon challenge the refusal of their application for pardon.
“The Judiciary which is the guardian of the Constitution, would be called upon to deliberate on a matter in which it was part of a process not provided for under the Constitution.
“Further, in the event that such a challenge entails some kind of unfairness associated with that part of the pardon process undertaken by the Judiciary, the confidence in the administration of justice would be substantially shattered.
“A court would find itself deliberating on a matter in which its own officials and actions are in question.
“Imagine a judge having to determine such a legal challenge whilst his/her JRC was part of the impugned process which led to the list of recommended names for consideration.
“This would certainly present an untenable state of affairs potentially leading to satellite litigation against the State.”
Rambally said, the Judiciary is often the last frontier to which people turn for justice.
“Any apparent compromise or breach of the separation of powers has the ugly consequence of damaging the perception of justice, something on which citizens continue to demand.”
In the wake of the issues highlighted, Rambally is seeking responses to the following questions from National Security Minister Fitzgerald Hinds or disgraced Attorney General Reginald Armour SC (who lied on affidavit tendered in US Court and was disqualified by the Judge from representing TT in a high profile civil case in which he previously represented the defendants):
1. Has an Advisory Committee been established and if so, when were the appointments made?
2. Who are the persons comprising the Advisory Committee?
3. Has the Advisory Committee been actively considering applications made by and/or on behalf of offenders?
4. What criteria is being used for selecting eligible persons to be pardoned and was this said criteria published?
5. Was a list of persons compiled for recommending to the President before the recent Criminal Bar Association’s proposal to pardon 60 prisoners;
6. Was the Advisory Committee, if any, mandated to consider applications following the proposal referred to at paragraph 5 above?
7. Is the Advisory Committee, if any, in receipt of applications made by and/or on behalf of offenders?
8. What is the established procedure for the Advisory Committee, to finalize the list of persons to be recommended for pardons? Was this procedure announced and if so, when? If not, why not?
In relation to the Judiciary:
9. Did anyone request officials of the Judiciary to undertake or cause to be undertaken, any work towards compiling a list of persons to be recommended for pardon? If so, who made the request and to whom was the request directed? Through which line of communication was such request made?
10. What, if any, was the procedure adopted by employees of the Judiciary in order to finalize a list of persons to be recommended for pardon? How did these employees arrive at the finalized list of prisoners who were eligible for pardon?
11. Who determined the procedure at paragraph 9 above?–
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