CJ v LATT -Getting to the Nana of the Matter

For several months now, there has been a steady stream of scoops, exclusives, invectives, innuendo, leaks, conspiracy theories, juicy gossip, allegations, denials, disclaimers, hands-off declarations, juicy photos, exposed documents – all the stuff that a mystery novel or considering the recent Oscars, the stuff that a good who-done-it move might be made of.
Were the possible consequences for individuals, for the state of our justice system or our entire governance; even for the possible bolstering of an already seething anarchy; were all these not so serious for our nation’s present and future, we could revel in the theatre of it all.
But, we have no such luxury.
The fact that engaged in legal battle in our very Courts we have the Bench (the Head of the Judiciary) v the Bar (the Association of the Legal Practitioners); this very fact should alert us of the magnitude of the dangers that abound.
We have been this way before, some will say….Remember Sharma, the Prime Minister, the Attorney General, the DPP, the President all in that toxic mix brewed in the vapours of the Naraynsigh murder.
We survived that, didn’t we?
Well, this is worse, much worse. Our very judicial system is now on trial.
There is need to cut through all the drama, intrigue, theatre and get to the heart of the matter – the Nana of the business at hand, as a senior colleague at the Bar loved to tell us.
GETTING INTO IT
The day after the High Court Judge ruled in the matter of the Chief Justice v the Law Association, a respected senior engaged me in conversation on the matter.
It started like this:
Senior: Did u read Kangaloo's judgment in the CJ CASE? What do u think?
Me: Haven't been able to read the whole thing yet. I saw LATT's comment.
But my senior was asking what I thought, so I continued:
“I think the problem for LATT is their insistence on calling what they are doing an "investigation". They could have quietly sought information and taken their information to the PM.
“Other than that, this whole thing calls into question the disciplinary power of the JLSC re the CJ as against other Judges. Also, the LATT should demand publicly that the PM investigate the allegations vs the CJ.
“I think he (the CJ) also acted inappropriately when he mobilized a posse of Judges to join him in issuing a statement basically exonerating him and causing division in the Judiciary.
“But, who is me to advise eminent SCs like the ones pronouncing on this issue, etc.?
Senior: “I laugh at the last question. But, on a more serious note, do u not think that the judges who signed that anonymous note ought to declare themselves so that they are not assigned this case?
Me: “What if Kangaloo was one of them? “To say that they were part would indeed be fair and prudent. But all man jack should man up on this. This is potentially the last straw in failed state status. And anarchy shall reign.”
Senior: I have read the judgement. I think the judge may have misunderstood what the LATT is doing or it was not properly explained to her. A good explanation either at the CA or the PC will reverse her decision.”
Me: And what was or is the LATT doing? Conducting a PI? An investigation? Macoing? What?
What's the outcome after having the CJ also a witness in their ‘investigation/inquiry’? Will the investigators then be witnesses before the s 137 tribunal, if the PM asks for one? What is LATTs remit? Is it as self-appointed investigating officer in a disciplinary process?
 Fundamentally I think it goes right back to the basic weaknesses in our Constitution. Too much uncertainty in our highest statute.”
Senior: I think your mention of S.137 in this chat is exactly the mistake that the judge fell into. The LATT has no nexus to S.137. That is a section for the PM to chew on, if he wants to.
Me: True, but, If not to get to the point of a Tribunal. If not so, then what is their investigation for? To make an allegation to the PM?
And in making allegations of wrong doing does anyone need to conduct an enquiry including interviewing the person against whom the allegation is to be made first??
I don't think that applies in any other circumstance. Would I have to conduct an enquiry including a possible interview of the accused before I go to the police with a complaint?
If LATT or I for that matter must conduct an investigation first, what then is the role of the PM in the whole process? Postman?! This sounds a lot like the Rules created by Parliament in LN 218 of 2017 that sought to turn the Police SC into a postman for a private firm in the appointment of the CoP and Deputy.
Where is due process and natural justice if the LATT is to satisfy itself of guilt in order to make a complaint to the PM.
I hold no brief for the CJ, but it seems that the LATT is trying to conduct a trial to determine if a complaint should be made. Not even to lay a charge. That is the PM’s or President's responsibility.
But our again limp Constitution does not lay out the disciplinary process in sufficient detail.
So, the PM, no matter how vigorously you complain, can simply ignore you, even if you conduct a PI or Trial in formulating your complaint.
Fatally, the LATT has repeatedly said that the outcome of whatever it deems what it was doing to be, may be that the CJ may have a question to answer or it may have proven that he has nothing to answer. Is that the role of an interested party to decide in disciplinary proceedings. I THINK NOT!
“And is the PM not to undertake such investigation/enquiry to satisfy himself to invoke a tribunal which shall itself investigate the charges?
Senior: And that is the nana of the matter as our old friend used to say.
Me: Let us see what the CA says.
Senior: Looking forward to that decision.”
And, so it ended. But, the public discourse continued well into the next 24 hours.
To and fro, for and against. But for and against precisely WHAT?
Are we, as a nation, after all the debates, talk show discourses, thinking aloud, etc., Are We, as a nation, getting to the Nana of the Matter?
SOME QUESTIONS TO PONDER
At the risk of boring my audience to sleep or worse, I chose to relate the entire conversation between my senior colleague and myself in the hope of pointing to some core issues.
I put the following as questions to ponder in the ongoing public dissecting of this entire affair:
A. Removal of a Judge:
a. The Reason: s. 137 (1) of the Constitution says that ANY Judge can ONLY be removed from office for  1) inability to perform the functions of his office or for misbehaviour;  
         i. Inability is from infirmity of mind or body or any other cause –
          1. Who is qualified or capable of deciding if a Judge is suffering from a mental or physical condition that makes it impossible to perform his functions?
          2. What is any other cause that can make a Judge incapable of performing his functions?
          3. Who can say what and how that is so and make an allegation?
      4. What constitutes Misbehaviour? What are the infractions? Infractions of What? Of the   Judge’s Code of Ethics, the Law?
b. The Process: According to s.137(3), In the case of all other Judges, the JLSC must seek from the President appointment of a 3-member tribunal of Commonwealth Judges to “enquire into the matter’ and “report the facts” to the President and “recommend” whether the President should further refer the matter to the Privy Council to decide on the removal.
c. The request to the President in the case of any other Judge comes from the JLSC. In the case of the Chief Justice, the request comes from the Prime Minister. Presumably, the JLSC conducts some level of “enquiry” before making such an important request that could lead to the removal of a Judge. What “enquiry” is the PM required to make before making a similar request re. the CJ?
d. Did the PM, in this present case, make any enquiry of the CJ or anyone else? Or, did he just decide, without any enquiry at all, that he would do nothing? Was his Chinese Wall an excuse for not doing any investigation at all, given his very important role in this disciplinary process?
e. Is it proper for the PM to request or not request a tribunal of the President, without himself doing some investigation of the matter to be able to satisfy the President that there is some preliminary level of proof of the CJ’s inability to perform his functions for reasons set out in s. 137(1)?
B. Who Investigates Possible Grounds for Removal?
     a. From the process in s.137 (3) of the Constitution, the Privy Council DECIDES if a Judge is to be removed.
     b. The Tribunal RECOMMENDS the removal of a Judge
     c. The President DECIDES if to set up a tribunal
     d. The JLSC or the PM PROPOSES that the President set up a tribunal.
     e. Given the decision-making points in the process, WHO and ON WHAT BASIS decides to take ANY STEP in this disciplinary process?
     f. Can the JLSC or PM (re CJ) propose to the President without Deciding that there is some basis to establish one or other of the ONLY GROUNDS on which a Judge can be removed from office?
     g. Can the President, if requested, just set up a tribunal WITHOUT being satisfied that there is some prima facie basis to establish one or other of the ONLY GROUNDS for removal of a Judge?
     h. Can a tribunal recommend removal of a Judge without establishing for itself one or other ONLY  GROUND for his/her removal?
     i. Can the Privy Council DECIDE finally on the removal of a Judge without satisfying itself that one   or other ONLY GROUND for removal is properly and conclusively PROVEN?
     j. How is every person or body at different points of this process to investigate and get Facts to make the recommendation or decision they must make?
    k. In the Public Service – Civil, Teaching, Fire, Police, Prisons - when an allegation is made against   an Officer, there MUST be an INVESTIGATION before a disciplinary Charge is laid against him/her. If the President in setting up the tribunal is, in effect, laying the Charge, WHO is investigating the allegation against the Judge before the Charge is Laid? Isn’t that the Responsibility of the JLSC (other Judges) and the PM (CJ)?
     l. Why is s. 137 NOT saying Who is to Investigate before Charge?
C. What is the Role of the LATT?
     a. If there are allegations in the public domain about a Judge, who is to decide if there is validity in them serous enough to recommend disciplinary action against the Judge and the Grounds for such action?
     b. Is that the Role or Duty of ANY citizen?
     c. Is that the Role or Duty of the LATT?
     d. Is that Not the Role and Duty of the PM in the present case and of the JLSC in relation to all other Judges?
    e. Is a “General Meeting of Judges” to "investigate” and announce their “findings” via an anonymous or any other advertisement or media statement?
D. Weakness of the Constitution
     a. Is it a fact that the Constitution in s.137 which is a disciplinary process, not detailed enough in   its content?
     b. If s. 137 Is not detailed enough, are there regulations to be followed by the JLSC, PM, President, Tribunal in carrying out their part in the process?
The stakes in this matter are really high. At risk is the credibility, not merely of the CJ, but of the entire judicial system and the disciplinary process itself.
It is vital, crucial, critical that we, as a nation, get to the heart of the matter – Is there any prima facie case, based on the ONLY Grounds for removal of a Judge as per s. 137(1) of the Constitution?
What are the allegations against the CJ in the public space?
 Did the CJ interfere in the constitutional role of the Police in instructing the Police to cease their protection of Justice Seepersad?
 Did the CJ in a meeting with Judges or otherwise attempt to persuade them to change state-provided security in favour of a private company connected with his personal friend?
 Did the CJ intervene in the HDC allocation of housing on behalf of one or more of his personal friends?
The CJ himself publicly said, in response, that a) he did not encourage Judges to change the arrangements for their personal security and b) he did intervene with the HDC on behalf of others. Did that response by the CJ end the matter?
More questions arise:
 Did the PM not know of all of this which is in the media, in the public domain?
 Did the PM ask the CJ a question like he asked his ‘fiend’ in the fake oil allegations in the public domain?
 Did the PM make any enquiry of the CJ or anyone else regarding these serious allegations?
 Does the “Chinese Wall” the PM suggested in the separation of powers prevent him enquiring? Does that wall now disappear as the PM is enquiring into sabbatical for the same CJ?
There must be some determination of the allegations against the CJ.
We went through the whole process only for the Privy Council to decide there was no reason to remove CJ Sharma from office.
Our Constitution, as much as the CJ or the Judicial system is under the microscope.
Also, if we don’t take the opportunity to recognise its weakness in this aspect AND FIX IT, we, as a nation, would have engaged in an exercise which generates much Heat, but NO Light.
Let’s get to the Nana of the matters at hand.
​
 Clyde Weatherhead
8 March 2018