No more was this evident than at Monday's hearing of the Chief Justice's criminal case against the State on charges of attempting to pervert the course of Justice. It has been claimed that everything that transpired was within the realm of law. Unfortunately, the law is not always within the realm of justice.
This piece is not to ascribe guilt or innocence upon the CJ. That is a matter for a court or tribunal. What is troubling is the process by which this matter has unfolded. In this particular instance, an allegation was made by the Chief Magistrate that the CJ had attempted to influence the outcome of the now infamous Basdeo Panday trial. A file was sent to the Director of Public Prosecutions and an arrest warrant issued. The CJ was successful in obtaining a stay of the warrant, even while a vanload of officers was at his door attempting to take him into custody.
This, remember, is the man who holds the third most powerful office in the land, after the President and the Prime Minister. Evading arrest, an injunction was filed that was taken all the way up to the Privy Council, where it was dismissed and the way was cleared for Chief Justice Sharma to be arrested. He was, and soon after, Roger Hamel-Smith was appointed by President Richards as a 'caretaker' CJ.
Meanwhile, the other issue of a tribunal against the CJ seemed to take less precedence as the criminal matter continued. It should also be noted that the Privy Council had, at that time, stated that a continuation of BOTH matters would be oppressive against the CJ. One can only assume then, that the state was heeding the advice of the Privy Council by not continuing with the tribunal and instead focussing on the criminal case.Fast forward to the last week or so. The defence in the case requested that the first witness to take the stand be Chief Magistrate McNicholls, the man on whose allegations the proceedings came into being in the first place. This request was made around February 21. Around the same time, and quite innocuously, the PM also announced the recommencement of an effort to initiate a tribunal. The Chief Magistrate failed to show on Mon 26, citing a case that he was presidding over and again on Wed 28, this time with no reason given.
Finally, appearing in court on Mon Mar 5, 2007, the prosecution dropped a bombshell. McNicholls had informed the state that he was not willing to provide evidence in the criminal case against the CJ. A criminal case where he was expected to be cross examined by Senior Counsel Pamela Elder. Interestingly, it was also a case where the PM was slated to be cross examined as well. After months of legal wrangling, the arrest of the 3rd most powerful man on the allegations of this same man, with the drop of a hat, the case had been dismissed on the refusal of the witness, a Chief Magistrate no less, to provide evidence.
Pertinent questions of the separation of powers and political influence in the judiciary must now be addressed. If the Chief Magistrate was not compelled any longer to give evidence in the criminal proceedings, then why was that not communicated to the court on the previous two dates that he was expected to testify? Why was the case even allowed to continue if the Chief Magistrate knew that he was no longer interested in pursuing the matter. All that was needed was a letter from him to the DPP, informing the DPP that his testimony would no longer be forthcoming.
Indeed, more troubling are the utterances since. The Chief Magistrate has now said that he is willing to give evidence in the Tribunal. One now has to wonder why the change of heart and indeed, how a WITNESS, can wield so much power over the conduct of an investigation into the CJ. It is indeed frightening to think that a single man can make an allegation, withdraw from testimony, present himself again for testimony at a place HE deems fit and the DPP, Prime Minister, Attorney General and others just play to the strains of his flute.
Indeed, the perception is that there is extensive collusion between those that seem to have a vested interest in the removal of the CJ. This, after all, is a man who was appointed, not by the incumbent administration, but by its predecessor. It is, symbolically, the final estate to fall from the legacy of the UNC administration, what with the changing of the President, PM, Attorney General,Commissioner of Police and the DPP. It would complete the royal flush, so to speak, should the administration be allowed to appoint someone deemed sympathetic to their causes as the head of the Judiciary.
What has been the relationship between the Chief Magistrate and the Prime Minister, Attorney General and the DPP? The PM has claimed that he is taking a hands off approach, but by the very nature of proceedings, he has stuck his hand, many believe too far into the cookie jar already. HE was the one that instituted proceedings for the establishment of a tribunal.
HE met with BOTH the CJ and the Chief Magistrate. HE has written to the President and the CJ. HE was the one that stood up in Parliament and announced that HE gave an ultimatum to the CJ to resign or face prosecution, a power that he did not have and more so a perversion of the course of justice itself, if ever there was. And it will be foolhardy to believe that his chief legal advisor, the Attorney General, did not direct and was privy to these actions.Indeed, one wonders at the timing of the abortion of the criminal proceedings and the announcement by the PM that he will again be looking into the establishment of a tribunal. With the criminal case already proceeding, and the CJ out on bail, would it not have been prudent to stay the tribunal hearings until the criminal proceedings were complete?
Too many questions have been raised. The CJ is as good as free since one would believe that testimony from McNicholls would be shaky, at best. His credibility has been irreparably damaged and with it, the credibility of the ENTIRE judiciary of the Republic of Trinidad and Tobago.
"Empires are broken down when the profits of administration are so great, that ambition is satisfied with obtaining them, and he that aspires to greatness needs do nothing more than talk himself into importance. He has then all the power which danger and conquest used formerly to give; he can raise a family, and reward his followers."- Samuel Johnson: Letter to John Taylor, (January 24, 1784)
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