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opinion
Also in this section: A resolution of Trinidad's judicial and constitutional crises by Rickford Burke --- Caribbean Guyana Institute for Democracy The Caribbean Guyana Institute for Democracy (CGID) is deeply concerned about the current controversy surrounding the Chief Justice (CJ) of Trinidad and Tobago (T&T), Justice Satnarine Sharma. The CJ is facing disciplinary action for alleged malfeasance and has launched multiple litigations intended to delay and obstruct this process. He and his attorneys have also been publicly lobbing fierce salvos at Prime Minister Patrick Manning and Attorney General (AG) John Jeremie. As a Caribbean affairs think-tank committed to the promotion of good governance, social justice and internationally accepted standards of democracy, the CGID feels constrained to comment on the sea of lawsuits, initiated by the CJ, to preemptively impede the prime minister and the president of Trinidad and Tobago from executing their constitutional duties under Section 137 of the constitution. Moreover, the CJ's resort to the courts, and the courts' granting of an injunction, to preclude the entire T&T Police Service from instituting criminal charges against him, effectively emasculates the very administration of justice that the CJ has sworn to uphold and protect. The allegations against the CJ are serious, and the circumstances which surround the apparent gratuitous granting of court orders which, in point of fact, insulate the CJ from inquiry, appear to constitute serious breaches of the law and judicial cannons of ethics which warrant investigation by a commission of inquiry. Justice Sharma's alleged inappropriate actions and subsequent litigious conduct, which is the genesis of this legal and moral morass, has severely undermined public confidence in the judiciary. Consequently, he is now viewed in an inauspicious light, and his integrity and credibility have been severely diminished. This unfortunate circumstance has, incontrovertibly, inhibited him from functioning effectively as head of the judiciary and may preclude his further service as a judge. What are the circumstances of the legal quandary facing Trinidad and Tobago? In January of 2005, AG John Jeremie and Director of Public Prosecutions (DPP) Geoffrey Henderson filed formal complaints with the prime minister alleging that the CJ improperly and illegally sought to influence them to drop murder charges against Sharma's friend, Professor Vijay Naraynsingh, who had been charged with killing his wife. Then in March 2006, the Chief Magistrate of T&T, Honorable Sherman McNicolls, filed a complaint with the attorney general, alleging that Justice Sharma had improperly and unlawfully attempted to direct him to find Sharma's friend, Opposition Leader Basdeo Panday, not guilty on corruption charges, which were at the time sub judice before the chief magistrate. The AG referred McNicolls's complaint to the prime minister and the commissioner of police. It is settled law that when such complaints are filed with the prime minister, the holder of that office, in exercising his best judgment, shall, in accordance with section 137 of the constitution, request the president to appoint a tribunal to investigate the conduct of the complainee and whether there is evidence to warrant the complainee's removal from office. Pursuant to the Jeremie/Henderson complaint, Prime Minister Manning advised the president to appoint the investigating tribunal. However, before President George Maxwell Richards could have constituted the panel, the CJ successfully filed a lawsuit to block the appointment, claiming that the prime minister acted out of bias. This matter is currently sub judice. Furthermore, when the CJ received notification of McNicolls's complaint, he sought and again obtained another injunction barring the prime minister from invoking section 137 of the constitution. Ironically, by granting a stay on the appointment of the tribunal until a the court determines the merit of the complaint against the CJ, the court is unconstitutionally usurping and abridging the powers of the very tribunal vested with the constitutional authority to conduct such investigations. Additionally, the police also simultaneously commenced a criminal investigation into the CJ's actions, under the direction of Assistant Commissioner of Police Wellington Virgil. The criminal investigation concluded that there was probable cause to charge Sharma with a crime. Thus the police submitted their case to Deputy Director of Public Prosecution Carla Brown-Antoine. The Deputy DPP later determined that the police evidence constitutes a prima facie violation of the law and, in keeping with the constitutional mandate of the office of the DPP, directed the police to charge Sharma with "perverting the course of public justice." Consequently, the CJ again returned to the courts and successfully petitioned High Court Judge Justice Judith Jones to issue an injunction preemptively restraining the police from following the directive of the deputy DPP. Subsequently, Police Commissioner Trevor Paul, ostensibly acting on the advice of independent police counsel, instructed that Sharma be charged. Thereafter the police sought and obtained a warrant for Sharma's arrest. The police commissioner has revealed that upon the execution of the warrant on July 14, 2006, Justice Sharma resisted arrest. Simultaneously, Justice of Appeal Stanley John, who presented himself at Sharma's residence during the attempted arrest, allegedly obstructed the execution process. The press has since published telephone records showing that, during this period, several telephone calls emanated from the CJ's telephone to Justice Jones's cell and office phones, as well as from Justices Jones's cell phone to Sharma's residence. At some point, Justice John summoned Assistant Commissioner of Police Clive Reyes, who was on the scene, into Sharma's residence to take a call from Justice Judith Jones, who was already on the phone. According to the Commissioner, Justice Jones directed Reyes not to arrest Sharma as she had modified her order to restrain Deputy PPP Brown-Antoine, Police Commissioner Paul and Assistant Commissioner Virgil and their agents from arresting Sharma, and from proceeding with the criminal investigation. However, if Justice Jones altered her motion after the police arrived at the CJ's residence and the police commissioner has evidence to support the former allegations, then both Justice Sharma and Justice John should be slapped with criminal charges, including "resisting arrest" and "obstructing police," respectively. Were these acts committed by ordinary citizens, those citizens would have been charged criminally and likely placed before the very justices. The intrigue intensified on July 23, when Justice Sharma admittedly directed the Judiciary's Public Information Office to issue a statement contending that all telephone calls from Sharma's residence to Justice Judith Jones were made by Sharma's Attorney, Russell Martineau SC. However Martineau, who is also president of the T&T Law Association, has disavowed this claim. If the CJ's own Attorney is to be believed, then the CJ continues to demonstrate a pattern of conduct that is unbecoming of his office. He has now opened the door to questions about his motive for apparently misleading the public, and the propriety of the actions of Justice Judith Jones and Justice Stanley John. Moreover, CGID believes that Justices Jones's restraining order grants the chief justice unparalleled immunities which are not contemplated by or enshrined in the law. It is premised on speculation, is overly-broad in scope and is devoid of constitutional basis. It also establishes a precedent in the Caribbean, indeed in the Commonwealth jurisprudence, that will empower all and sundry, who suspect the police have prima facie evidence against them and are about to press criminal charges, to obtain a preemptive injunction to restrain the police service from executing its constitutional powers of arrest. This precedent must be reversed with immediacy, as the consequences of perpetuating this dangerous departure from the framework of the constitution will lead to the undermining of the rule of law. Justice Jones's order places the CJ above and beyond the law. This is unfortunate, since "the State" of T&T, like Justice Sharma, is also entitled to justice and equal treatment and protection under the law. It is for this reason that the court was not invested with police powers like law enforcement, criminal investigations and search and seizures. It has absolutely no constitutional authority to preempt police criminal investigation or dictate which citizen can or cannot be charged or arrested. These are law enforcement functions which the constitution confers in the executive branch, under the doctrine of "separate but equal branches of government." Under this doctrine, the legislative branch makes the laws, the executive branch executes the laws and the judicial branch constructively applies and interprets the law. The judicial branch cannot legislate from the bench. This is extra-constitutional. The court, the foundation of the judicial branch, is the citadel of justice. It is a direct creature of the constitution and its derivative laws. It must therefore exercise its functions independently and within its constitutional mandate. It must also operate on the basis of impartial rules and make its determinations on facts and evidence presented to it. Its jurists are required, in the exercise of such functions, to be consummately and fastidiously guided by the law and to employ propriety and wisdom in the application and interpretation of the law. It is within this context that the justice system was founded on the cardinal principle of a trial by judge or jury to determine the merit and constitutionality of criminal and civil proceedings before the courts. Thus the issuance of injunctions which preemptively bar the police from investigating or charging an individual; prohibit the DPP from advising the police as well as from prosecuting the said individual; and, restrain the prime minister and president from appointing a tribunal to inquire into the conduct of the said individual, in the face of allegations of serious criminal wrongdoing, creates a supra-constitutional citizen, abrogates the fair administration of justice and spawns a culture of lawlessness. No citizen or authority of government should be allowed to treat the judiciary like a "treat bag" where one can reach in and pull out personal favors in moments of personal crisis. No chief justice must be allowed to cast the Judiciary against the executive branch of government which is co-equal but commissioned with the mandate to enforce the law of the land. No chief justice must be allowed to destroy and compromise the judiciary when faced with the prospect of removal from office. This is both impermissible and unhealthy for governance. This situation has become untenable. The government must act resolutely to resolve this crisis lest it invites anarchy. We believe that there must be a commission of inquiry to: · look into the conduct of Justice John and his alleged role in obstructing the execution of the arrest warrant; · (ii) investigate who initiated the telephone calls from Justice Sharma's residence to Justice Jones as well as the content of the purported conversations; and · (iii) under what circumstances and legal basis did Justice Judith Jones alter her order on July 14. If the Appeals Court does not discharge the three injunctions that prohibit the executive branch from investigating the CJ, and the CJ continues to litigate this matter all the way to the Privy Council, the legislature of T&T should enact the necessary laws to expressly preclude the courts, in investigations of members of the judiciary, from granting preemptive injunctions which delay and debauch the administration of justice. Consequently, the CGID has formed the opinion that President George Maxwell Richards has acted judiciously in appointing Justice Roger Hamel Smith to act as CJ until the Sharma matter is disposed of. On the other hand, this is an interim, cosmetic measure. The real issue facing T&T is whether or not Justice Sharma is now competent to lead the Judiciary. CGID believes that this question can be made moot if Justice Sharma demits office to preserve the dignity and integrity of the judiciary, and allows the investigations into his prior conduct to take their course.
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