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No Man Is Above the Law Let Justice Prevail

By Dr. Selwyn R. Cudjoe
February 22, 2005

(A lecture delivered at the Port of Spain City Hall on February 17. 2005)

Tracey Wilson of the Emancipation Support Committee reminds me that every political hiccup should not be elevated to a political crisis and that malfeasance by any one who holds public office should never be beyond public scrutiny. I am also convinced that public accountability and moral authority are the only currency that gives the judiciary any standing in a democracy. Recently, in Ukraine when Viktor Yanukovych, the former prime minister, tried to pervert the wishes of his people by trying to steal an election, the Ukrainians rose up in righteous wrath and demanded that the machinery of government cease until the people's wishes were restored. That such an action was aided by close to $70 million US dollars (that is, $450 million TT dollars) does not, in any way, cheapen the ardor and passion of the Ukrainian people and the demand that its government act in a responsible and even handed manner. At the crucial hour-nay, the turning point of their democracy-the judiciary acted in defiance of the sentiments of former Prime Minister Yanukovych and saved the day for their country when it ensured that a run-off election take place, the eventual winner of which was Viktor Yuschenko. If a democracy is to survive, the moral authority of the judiciary can never be questioned nor besmirched.

As we come together to discourse publicly about matters that affect our society I speak neither as one who is goaded by a sense of crisis-in fact, I have been mostly silent about this matter--nor as someone who is afraid to say that "No One is above the Law" and that justice must allowed to prevail always. I start with the premise that a free, impartial judiciary is the cornerstone of any democracy. Inherent in such a premise is my absolute conviction that judges must be above suspicion in their dealings; that a Chief Justice must never attempt to coerce the course of justice nor should his predilections and/or personal feelings of gratitude be allowed to pervert the ends of the judicial process that is justice. No public official, be she African or Indian, Chinese or Portuguese, should be exempt from public scrutiny nor, for that matter should one's racial or ethnic origins or religious convictions prevents us from examining how they conduct the public's business. In a democracy, it cannot be that anytime that we seek to investigate a matter that we are told that some folks are untouchable: that because a person is Hindu or Roman Catholic he cannot be prosecuted; that because his hands are delicate, we cannot put some handcuffs around his wrists. Injustice to one is an injustice to all. Special preference to one diminishes the equality principle to which all justice must aspire. None is beyond the purview of the law.

Today, in Trinidad and Tobago we are faced with peculiar notion that somehow Hindus are above the law. A week ago, before the general public knew what the issues surrounding the investigation around the behavior of Chief Justice Satnarine Sharma were, a very intemperate man, barely two days off of a plane from his motherland, declared: "Any attempt by the Government to remove Chief Justice Satnarine Sharma from office may result in racial violence." In contempt of all that is decent and sacred, he bemoaned: "We are concerned, Mr. President, that this country may be teething (he meant teetering) on the brink of racial violence. This may well be the spark that ignites the flame." Here is a man who presumes to advice the President but cannot spell the word "teetering."

As if this was not bad enough, the Trinidad Guardian, the mouthpiece of the UNC and the Indian community, declared on its front page: "HANDS OFF SHARMA! Maha Sabha warns of violence over CJ controversy" (Guardian, February 12).

The Express was even more emphatic in its reportage. Quoting from Mr. Maharaj's letter to the President, it declared:
"As an organization and as a community, we have never ever responded to our difficulties with violence. We have invested our money in going to the courts of the land and we want the judges to be independent and free from political interference….We are concerned that this [issue] will erupt and I am more concerned that people like me will lose control because the younger generation will just push us aside and they will take their own course of action (and) we may not be able to influence the course of events…because people will take events in their own hands" (Express, February 12).
The intent of this position was clear: Beware Black People! If you even investigate our Indian Chief Justice there will be hell to pay.

After Maharaj, the Hon. Basdeo Panday, another Indian proponent, entered into the debate. As if they collaborated in their responses--and they might have-- Panday claimed that there was a "sinister plan" by the PNM Government to remove the Chief Justice. He wrote:
"It is common knowledge that in recent times Chief Justice Sharma has delivered several judgments against the Government and made judicial statements critical of the political directorate, 'especially in constitutional and judicial review matters involving abuse of the power of the State. These decisions and judicial statements seem to have offended the Government. I refer to but a few such cases, there are many more:
  • "The dissenting judgment of Chief Justice Sharma in the Gypsy/Chaitan Case;
  • "The case of Marlene Coudray in which she alleged she was victimized by the Prime Minister for refusing to carry out his illegal instructions;
  • "The case of Devant Maharaj in which the Prime Minister was instrumental in his victimization by a State corporation;
  • " The case of the Sanatan Dharma Sabha in which the Government discriminated against the Sabha in the grand of a radio licence.
Many top ranking Government officials have expressed dissatisfaction with some of these decisions "against" the Government. It would appear that the PNM Government wishes to get rid of Chief Justice Sharma because they cannot control him. (Letter to the Prime Minister, February 14, 2005)
Just for the record. First, CJ Sharma dissented in the Gypsy/Chaitan case. Are we to assume that Roger Hamel Smith and Michael de la Bastide were acting in a racial manner when they supported Justice Archie Ivor's original judgment? Second, the official record of the Marlene Coudray matter indicates that there has been no hearing by the Court of Appeals on this matter. Therefore, Chief Justice Sharma could not have made any decision on this matter, except the allegation that the Chief Justice may have manipulated the system in choosing a particular judge to hear and determine the matter knowing which way he wanted the matter to go. I have no privileged information on this matter. But then Basdeo Panday may have some inside information that the general public does not have. Third, the Devant Maharaj/NLCB has not been heard at the Court of Appeals level. It was decided by Justice Mira Deane-Amorer. Therefore, it is wrong to say that Chief Justice Sharma decided that case against the State. Fourth, in the Sanatan Dharma Maha Sabha Case against the State in which the latter was charged with denying a radio license to the former, Carlton Best decided in favor of the Maha Sabha. The State appealed. Roger Hamel Smith, the President of the Panel, Allan Mendonca and Margo Warner were unanimous in their ruling against the State. The State lost again. Chief Justice Sharma had nothing to do with this case. Therefore, it is incorrect to say he decided this case against the State.

The duplicity of the Leader of the Opposition does not end there. He contends: "What is of even greater concern to the Opposition is the provisions of the Constitution which militate against a free and fair decision in the proposed 'trial' of Justice Sharma, the Government's apparent vendetta against this Chief Justice and your relentless persistence in having him removed from office? It would appear that you are the virtual complainant against the Chief Justice. He is to be tried by a tribunal appointed by the President (who was appointed by the PNM) made up of members effectively appointed by you. The Constitution has the effect of inadvertently making you, judge, jury and executioner in your own case."

Not only are these damn lies and needless sophistries. They reveal a mind that has a constitutional inability to distinguish between truth and falsity; a mind that is capable of being arranging any set of factoids to achieve any deceptive end. Suffice it to say that the Leader of the Opposition can show no evidence of "an apparent vendetta" against the Chief Justice or that the Prime Minister is the "virtual complainant against the Chief Justice." He is not judge, jury nor executioner of the Chief Justice? He simply does what the Constitution demands and that is really what alarms the Leader of the Opposition. Law and order are in direct opposition to the recklessness that always characterizes the behavior of the Leader of the Opposition. His claims are just as reckless and as self-serving as those of Sat Maharaj.

However, the intent is the same: the Chief Justice is above law and should not be investigated. Race must always trump the day. The Prime Minister's detractors seem to suggest that it is the Prime Minister rather than the Chief Justice who really on "trial". . When my mother was alive she always said: "Birds of a feather flock together." Naturally and necessarily, if an Indian is on trial all Indians must band together to support one another. Therefore, it was almost inevitable that another Indian would jump into the fray. She uses the badge of the Catholic Church to promulgate her racist agenda. Leela Ramdeen, the Chairman of the Catholic Commission on Social Justice (CCSJ), is the daughter of Balgobin Ramdeen, a former DLP Member of Parliament. Although she claims to be Catholic, in her heart she remains a part of a reactionary racist cabal. So that when we see Leela Ramdeen, one must always see DLP, UNC and Maha Sabha first and Roman Catholicism second. That is just how it goes in this land.

Leela Ramdeen is the "Episcopal Delegate" of the Roman Catholic Church in that she speaks on behalf of the Archbishop. Yet, "cat can't make dog." As a person with affiliations to the DLP, the UNC, and the Maha Sabha, she could not help but stand with her natural constituents when the time came to make a judgment against her own. In taking what she called a "principled stand" she noted that the CCJS is "gravely concerned that the Judiciary, the Executive and the Legislature seem to be heading for a collision course that could be disastrous for our already fragile nation…. The CCJS described as 'extremely serious' the charges being made about a plot to remove Chief Justice Sat Sharma from office….The Catholic Commission said that protocol appeared to have been discarded and 'it seems that some participants are driven by anger, which must be brought under control for the common good." How she knows that there is "a plot" against the Chief Justice, she does not say. She only knows that somebody is out to get him. Picking up on the Sat Maharaj/Panday theme, she observes: "If we allow serious infighting at the pinnacle of our society to snowball out of control, the entire country will be smeared as a consequence and be discredited. This is above and beyond race, religion, politics or any sectional group." She concludes: "Unofficial meetings between persons who may be involved at the highest level in sorting out this matter will prevent any explosion or exposure of unwanted, unbecoming internal strife."

Like Sat and Panday, Leela could produce no evidence of a plot, sinister or otherwise, to dethrone their beloved leader. Yet, they were not unafraid to besmirch the State or its leadership. One should remind Ms. Ramdeen that since Vatican II it has been official Roman Catholic policy that the Church and State are separate entities. She should know that as early as 1929 at the Lateran Pact, Mussolini's government in Italy and the Pope agreed that the Pope would run Vatican City as a separate state and Mussolini would run Italy, including most of the city of Rome, as a separate State. There would be no interference of the Pope in the affairs of Italy and vice-versa. This agreement was ratified by Vatican Council II (1962-65) when the Church formally decided it would not interfere in State affairs and the State would have nothing to do with the Church. An adherent of DLP, UNC and Maha Sabha, Ms. Ramdeen will be well advised to follow the teachings of Vatican II and stay out of our business. This evening I protest the involvement of the Catholic Church in the affairs of our State most strongly and ask the Church to stay completely out of our business.

Faced with the specter of Chief Justice Sharma being investigated by the State for evidence of possible misconduct, Sat, Leela and Basdeo have all become scholars on internal and external strife. It is noteworthy that when the justices of the Court were ruling in favor of the Leelas, the Sats, and the Basdeos, the society was the embodiment of decorum, justice and fair play. Not one African predicted that gloom and doom were about to overtake the society because the courts ruled against the State. Now, the State has begun to follow the procedures as the Constitution dictates, we have all this talk of violence and plots to disable the society.

As is characteristic in so much of these matters, such nonsense could not be limited to the Sats, the Leelas and the Basdoes. Kirk Meighoo, another self-proclaimed proud Indian, had to jump into the brew with his silly pretentiousness. He could not help but declared his ethnic allegiance. He declares: "What many of us are discovering now is that even the constitutional provision for removing the Chief Justice is undemocratic and inconsistent. How strange that the Chief Justice should be held accountable to the Prime Minister and not to the President, or to Parliament. It reveals yet another autocratic, undemocratic provision in our Republican Constitution...The PNM controls the executive, the legislature, and it is now becoming clear that it has reserve power over the head of the judiciary as well." (Express, February 13, 2005).

Let us try to deconstruct this pretentious foolishness and, in the process, thank Jacques Derrida for giving us some tools to understand how silly this gentleman is.

The relevant section of the Trinidad and Tobago Constitution that deals with this matter reads as follows:
137 (1): A Judge shall be removed from office only for inability to perform functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehavior, and shall not be so removed except in accordance with the provisions of this section.

(2) A Judge shall be removed for office by the President where the question of removal of that Judge has been referred by the President to the Judicial Committee and the Judicial Committee has advised the President that the Judge ought to be removed from office for such inability or for misbehavior;

(3) Where the Prime Minister, in the case of the Chief Justice, or the Judicial and Legal Service Commission, in the case of a Judge other than the Chief Justice, represents to the President that the question of removing a Judge under this section ought to be investigated, then…."
What may I ask the learned Dr. Meighoo is either undemocratic or inconsistent about what we have read so far; and what is it inconsistent with? A Constitution is adopted by the relevant body and remains the law of the land until it is changed to reflect new circumstances. There is a sense in which a provisions in a Constitution can be seen and are undemocratic-for example, when Blacks in the USA were prevented from voting in certain states because of the color of their skin-because it contravened the basic tenet of the Declaration of Independence that "all men are created equal and endowed with certain inalienable rights, etc..." There are also cases in which a Constitution that embodies gender inequality or denies certain rights because of one's religions beliefs must be seen as being undemocratic. However, in this case, I can see nothing that can be deemed undemocratic. The Constitution allows the Prime Minister to collect the information and determine whether it should be sent on to the President. In any case, the decision of guilt or innocence is determined by the Privy Council that the UNC loves and respects so very much.

Under the circumstances, it does not seem a plausible reading of the Constitution that the Chief Justice is "held accountable to the Prime Minister and not to the President, or to Parliament." In fact, he is held accountable to none of these individual or institutions? The Constitution spells out a procedure that Mr. Manning has tried to follow. In the case of alleged misbehavior, the Constitution says: "the President shall appoint a tribunal…that shall enquire into the matter and report on the facts thereof to the President and recommend to the President whether he should refer the question of removal of that Judge from office to the Judicial Committee." In fact, the Chief Justice may even be suspended when this trial takes place.

In his address to the Nation, the Prime Minister made it very clear:
"According to the constitutional process, the Prime Minister must decide whether the question of removing the Chief Justice ought to be investigated. Naturally, such a decision should be made only;
a) After a thorough examination of the issues is undertaken and
b) If there is a serious enough case to answer.

Once the PM is satisfied that the investigation ought to be carried out, he must refer the matter to the President to appoint a Tribunal comprising of judges from anywhere in the Commonwealth. If the Tribunal determines that the Chief Justice should be removed from Office it refers the matter to the Privy Council for confirmation or otherwise."
How, then, can a learned commentator conclude that Chief Justice is accountable to the Prime Minister. Dr. Meighoo may have preferred that another agency or person rather than the Prime Minister be selected to collect the facts and he may well have an opportunity to make such a suggestion at the next rounds of discussion on constitutional reforms. As it stands, no reasonable person can conclude that the process is undemocratic or that it places the CJ as being accountable to the Prime Minister. He is not.

Some scholars of the Constitution have suggested that this power was conferred to the office of the Prime Minister because of the constitutional arrangements prior to our adoption of the Independence Constitution. Placing such power in the hands of the Prime Minister had a lot to do with the fact that we could not go into Independence and leave those powers in the hands of the Governor General. In fact, precisely because we were going from a colonial to an independent state, it was necessary to be sure that the levers of power were within the hands of the democratically elected officials. Even the Chief Justice of the United States is selected by an elected President. After that, they do their own business and conduct themselves in a certain manner. But the notion that any interface between the Prime Minister and the CJ makes the whole process undemocratic and inconsistent is untenable. Perhaps, the Constitution needs some more tweaking with regard to how to remove a Chief Justice from office. Selwyn Ryan has argued:

It is clear that we need to revisit the question of how we remove a chief justice. This matter was discussed quite heatedly during the pre-Independence Queen's Hall Conference. Looming in the background was the experience of Ghana where [Kwame] Nkrumah had fired his first Chief Justice whom he subsequently had detained. There was strong opposition to Ellis Clarke's proposal to give the power to initiate the removal process to the Prime Minister. The concession made was that the findings of the three-judge Tribunal which was to be appointed on the advice of the Prime Minister could be referred on appeal to the Privy Council which would have the final word on the matter (Express, February 13, 2005).

Whatever our formulation, it is always important to remember that texts, be they legal, biblical or literary, always have to be interpreted and there is no fool-proof way to know which reading is right or wrong. The Constitution is a text. It, too, has to be interpreted by men with biases and prejudices. Commonsense is our only guide. However, in this context, we believe that the Chief Justice must be given every opportunity to state his case before the Prime Minister presses the final button as it were. It might be that the final button-pushing should be in the hands of the President but then again we must remember that no one really elected the President who ultimately is responsible to no one. Sooner or later, the Leelas, the Sats, the Basdeos and the Kirks will have to tell us, in their own objective ways, how to proceed democratically. They will have to outline a system in which there will be no bias at all and one that can be insulated from the political process.

Lost in all of the constitutional issues and procedure, is the actual charges that have been made against the Chief Justice some of which borders on the criminal. According to Ria Taitt of Newsday, by the time the Director of Public Prosecutions (DPP), Geoffery Henderson, held his fifth meeting with the Chief Justice, he felt extremely threatened both in terms of the security of his job and the manner in which interference in the course of justice was proceeding:

In a statement which forms part of the documents of complaint against Sharma, dated January 10, 2005, Henderson detailed his discussion with Sharma at five separate meetings. Four of these meetings-the first, second, third and fifth were held at Sharma's request, while the fourth meeting was held at Henderson's request. [From these meetings, Henderson] came away with certain general impressions

1. That he and his colleagues in the DPP's department, were proceeding to charge a particular individual, notwithstanding that they had full knowledge of a conspiracy to falsely implicate that particular individual;

2. that he (Henderson) to a lesser extent, but more particularly certain senior members of his department were perceived as racist and that persons harboured the suspicion that the charges against a particular individual might have been racially motivated;

3. that persisting with these charges could have repercussions for his job as DPP (Newsday, Feb 13, 2005)

These are serious charges. If a member of the public sought to obstruct justice, he would be subjected to serious court proceedings. In fact, it would be considered a criminal matter. How much grievous then it must be, if such charges are being made against a chief justice.

Such a preamble brings us closer to what is at stake in this matter? In broad strokes, the Prime Minister has outlined what the issues are and how he intends to deal with them. He made it clear that they were now in the investigatory stages. To many of us, the events seem simple enough. Charges have been made. Given where he sits, the PM felt it was his duty to follow the dictates of the Constitution. My own feeling is that there is a centrality in which we place the Prime Minister that does not leave me very comfortable. However, the Prime Minister's explanation has given the issue a certain transparency and citizens can now reflect not so much on what the Constitution says, but how we interpret the constitution and what it tells us about the evolving nature of our laws by which we are supposed to live.

But if the interpretation of the constitution was the only matter involved, I would have no problems discussing the procedural arguments and trying to discover whether this aspect of our democratic institution could police itself as it were and whether, the judiciary could go through its conundrums and still emerge healthy without the necessary interference of outside bodies. Yet, we should be absolutely clear on one thing. It is the Chief Justice rather than the Prime Minister who is on trial here. Nothing should take us off of that trajectory. Indeed, we must guard against the onslaught of newspapers such as the Trinidad Guardian that continue to indulge in the big lie technique. For example, the headline of the Trinidad Guardian on Sunday, February 13, is instructive. It reads: "Prime Minster WRONG to WRITE CJ." The story notes: "Prime Minister Patrick Manning has no constitutional authority to write Chief Justice Sat Sharma about allegations of his misconduct in office. Also, it is being said that this act by the PM represents a serious political abuse of his office. Sources in the judiciary say that, according to the Constitution, it is the job of President George Maxwell Richards to write the CJ" They do not tell us in what part of the Constitution we find such commands.

In another story, "Political interference in the judiciary," the Trinidad Guardian, states: "Sources contend, however, that the Manning regime is moving fast and furious to oust the C.J. purely for political grounds….One source contends that that the issues are deeper than the C.J. trying to influence the outcome of cases. The source contends, too, there exist 'a cabal of judges, including a relative of a top PNM member, who is against a Hindu being in such a powerful position." Such concerns make it very clear that the attempt here is neither to seek justice nor to strengthen the judicial system. The aim is to turn the system on its head so that the Chief Justice who happens to be Indian is not investigated.

Therefore, it is important that we look beneath the surface to really find out what is happening here. In the first instances, there must be no untouchables in our society. Untouchable as a caste may be acceptable in Hinduism, it cannot become a part of our democracy. No one must be above the law. Passive or active resistance (read violence) against the State must be resisted it all cost. If it is, as our Prime Minister has suggested, that certain claims have been made against the CJ they must be pursued and allowed to go where they may. We, the African community, will be listening and looking for the outcome.

Secondly, we must be aware that certain elements in our society are playing a dangerous game with the nation's psyche: they claim that Indians are under attack and that all of us must bend our backs over backward to accommodate their wishes. The trick is simple. If they claim that the whole society has ganged up to deny them their just rights, then all of us have to be on guard and the benefit of the doubt must always go to the Indian. The trick is this: if you claim racial discrimination long and loud enough then the whole chorus of the media begins to do the dirty work that Sat Maharaj and his boys have been doing.

Such a case was on display recently when Joan John was made a deputy governor of the Central Bank. Ms. John was at the Bank for close to thirty years. After receiving a BSc in economics from UWI, she began to work at the Bank. After several years of work she went to New York University to do her MBA in Finance. She returned to the Bank for a while before proceeding to work at IMF for two years after which she returned to the Bank to work as an understudy to Ms. Amoy Chang Fong, a former deputy governor of the Bank. After thirty years she worked her way up and became a Deputy Governor of the Bank. When Governor Ewart Williams announced her appointment he held a press conference to inform the country of his decision. After laying out Ms. John achievement and the contributions she had made to the Bank he opened his press conference to question. The first question that came had nothing to do with Ms. John's qualification. The reporter could only ask: was the post advertised and what did the governor think that Sat would say about the appointment.

Sat had attacked the Bank constantly and described it as the "Congo Bank." In fact, he has attacked the Bank and other such institutions so fiercely that he no longer has to ask the damning questions. The press has picked up the onslaught and is now doing his dirty work for him. Here, in a nutshell is the triumph of an ideology that preaches Indian privilege that is sure to grow into Indian supremacy.

Apart from creating an atmosphere in which everything is presumed to be tinged with racism, the Indian forces in our society have begun to use judicial reviews and constitutional motions to stymie the work of the society. Such constant harangue at every level of the society, particularly at the governmental level, has had the effect of the kind of civil disobedience for which Panday has been calling. It is grounding the society to a halt very gradually as it seeks to make Indians untouchable within the society.

Quickly after he returned from India Sat Maharaj declared that we had wronged his fellow Hindu brother and all hell would break loose-in fact, the vengeance of racial conflagration would descend-- if we even tried to touch Chief Justice Sharma. Curiously, enough, Sat knew as much as the average citizen knew about the matter. But Sat is Hindu and Sharma is Hindu and from that standpoint Sat declared his loyalty: No Hindu, no matter how despicable his behavior, no matter how he perverts justice, must never be touched. This is something that we must fight against. It can yield the society no good fruits at all. Such a posture would make the society ungovernable and lead to civil strife.

No society can go forward if one section is safeguarded while another watches on in a helpless manner. No group can claim privileges that another should not and cannot have. I would hope that if the Chief Justice was African and the same charges were made that I would have applauded the actions of the Prime Minister with same vigor. I suspect only time can tell what I would have done. In the meantime we have a duty to perform. The process must go as far as it must legally and justice must be the desired outcome. The conduct of the Chief Justice must be investigated in a vigorous manner. If it turns out that a Tribunal must be put in place then we have no other choice but to support such a position.

The Executive of the National Association for the Empowerment of African People has given this matter much thought. We insist that no one is above the law and demand that Justice must be allowed to prevail. We shall not be intimidated by the noises and false positions of those whose only concerns are those of their group rather than the welfare of the country. It must not be said that an Indian cannot be trusted with the sacred responsibilities of the direction of the State. They must be encouraged to assume their Tribagonianness and to understand that here, in this country, every creed and race find and equal place. None is better than the other; none is above the law; and with the help of the powers above and those around us, let us all proclaim the brotherhood of man and the desire to reduce the relevance of ethnicity and religion when we make decisions about what is in the best interest of the State.…..

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