Articles on this Page
- 03/04/17--21:01: _THE THREE-FIFTHS MA...
- 03/11/17--21:30: _THE LOBBYIST GAMBLE
- 03/18/17--20:57: _THE THREE-FIFTHS MA...
- 03/25/17--21:40: _REVIVING THE DEATH ...
- 04/01/17--22:32: _BREXIT BEGINS
- 04/09/17--01:41: _FATCA REPEAL BEGINS
- 04/15/17--21:07: _HOUSTON, WE HAVE A ...
- 04/22/17--21:02: _A SECOND BREXIT VOTE
- 04/29/17--21:05: _THE CCJ STRUGGLE
- 05/06/17--20:39: _JUDICIAL POLITICS
- 05/13/17--23:03: _CONSTITUTIONAL CHAL...
- 05/20/17--22:58: _THE DUMAS DECISION
- 05/27/17--21:06: _PAINFUL JUSTICE
- 06/03/17--22:52: _THE CRISIS DEEPENS
- 06/10/17--22:42: _THE PRIVY COUNCIL E...
- 06/17/17--22:53: _A COMMON ENTRANCE P...
- 06/24/17--22:41: _A CRUCIAL ERROR
- 07/01/17--22:04: _A THIRD CABINET RES...
- 07/08/17--22:23: _DESIRABLE OR UNDESI...
- 09/09/17--22:26: _TWO YEARS AND WAITING
- 03/04/17--21:01: THE THREE-FIFTHS MAJORITY DEBATE
- 03/11/17--21:30: THE LOBBYIST GAMBLE
- 03/18/17--20:57: THE THREE-FIFTHS MAJORITY GAMBLE
- 03/25/17--21:40: REVIVING THE DEATH PENALTY
- 04/01/17--22:32: BREXIT BEGINS
- 04/09/17--01:41: FATCA REPEAL BEGINS
- 04/15/17--21:07: HOUSTON, WE HAVE A PROBLEM
- 04/22/17--21:02: A SECOND BREXIT VOTE
- 04/29/17--21:05: THE CCJ STRUGGLE
- 05/06/17--20:39: JUDICIAL POLITICS
- 05/13/17--23:03: CONSTITUTIONAL CHALLENGES FOR JUDICIAL COMMISSION
- 05/20/17--22:58: THE DUMAS DECISION
- 05/27/17--21:06: PAINFUL JUSTICE
- 06/03/17--22:52: THE CRISIS DEEPENS
- 06/10/17--22:42: THE PRIVY COUNCIL EFFECT
- 06/17/17--22:53: A COMMON ENTRANCE POLICY
- 06/24/17--22:41: A CRUCIAL ERROR
- 07/01/17--22:04: A THIRD CABINET RESHUFFLE
- 07/08/17--22:23: DESIRABLE OR UNDESIRABLE?
- 09/09/17--22:26: TWO YEARS AND WAITING
The debate continues about when should the Government decide to include in any piece of legislation the preamble and the certificate that will confirm that Parliament is making a confession about its intention to legislate in a manner inconsistent with the fundamental human rights and freedoms provisions of the Constitution.
Section 5(1) of the Constitution states categorically:
“Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.”
While the language seems explicit enough there is another view that suggests that the Attorney General is pretty much able to bring simple-majority legislation to Parliament that may seek to divert from these requirements.
The Canadian Bill of Rights 1960 model that T&T copied for its constitutional chapter on human rights makes provision for the grant of fundamental human rights and freedoms with one hand and simultaneously makes provision for the same rights to be taken away with the other hand. This is where the legislature is able to carry out its agenda in a manner that permits it the flexibility to “abrogate, abridge or infringe” human rights, but with the necessary safeguards.
There are three exceptions to the human rights provisions in our constitution, namely (i) exceptions for existing laws that were in force on August 1, 1976, when we became a republic; (ii) exceptions for periods of states of emergency; and, (iii) exceptions for certain legislation.
All of this is contained in Chapter One that begins with a sub-heading that refers to “Rights enshrined”. The wording of section 4 of the Constitution begins by making reference to the prior existence and the continued existence of a list of fundamental human rights and freedoms which are detailed in section 4 from subsections (a) to (k).
Any government can bring legislation to Parliament to infringe any of these enshrined rights and freedoms. In doing so they may remove the requirement for a three-fifths majority in both Houses of Parliament which usually provides a passport to legislate notwithstanding the existence of these rights and freedoms. The backstop in this arrangement is the judge who can ultimately decide that such a requirement for a three-fifths majority ought to have been included by Parliament when the legislation was being enacted or who can determine that even if it was properly enacted the legislation is “not reasonably justifiable”.
One such example was the Maxi Taxi Act 1979 that was enacted minus the three-fifths majority and did not include the preamble confessing inconsistency with sections 4 and 5 of the Constitution and there was no certificate authenticated by the Clerks in either House confirming the required three-fifths majority.
On May 19, 1992, Mr Justice Aeneas Wills sitting in the High Court in the matter of Curt Mendez and the Transport Commissioner and the Attorney General (HCA No. 342 of 1992) held, inter alia, as follows:
“By virtue of the provisions of Section 13 of the Constitution supra there is nothing to show that it was an Act which had been declared to have effect even though it was inconsistent with Section 4 of the Constitution. I therefore find that the enacting power of the Legislature was not exercised in accordance with the terms of the Constitution from which it derives its power. In the result, I find that sections 6, 7 & 12(f) are null and void and of no effect. That is to say they are unconstitutional.” (p. 16).
The error of the Parliament in not legislating in accordance with section 13 of the Constitution in 1979 where deprivation of property was concerned led to unconstitutionality being inflicted upon the Maxi-Taxi Act in 1992 when Curt Mendez challenged its validity.
Mr Justice Wills went further to say in his judgement as follows:
“Should these sections and regulations be excised from the Act, would the Legislature have enacted what survives without Sections 6 and 7 or Section 12? I think not. Moreover I think the Act would be unworkable. In the result:
(1) I declare that the Maxi-Taxi Act Chapter 48 : 53 is unconstitutional, null and void and of no effect…” (pp. 16-17).
This outcome led to Parliament having to enact a new Maxi-Taxi Act within a couple of weeks of the previous one being declared unconstitutional for failure to include the preamble of intended infringement and the certificate for a three-fifths majority.
I have detailed in columns on October 9, 2016, and February 19, 2017, the consensus that was reached between the Government and the Opposition in May 1992 to enact a new Maxi-Taxi Act in accordance with section 13 of the Constitution.
It is always better for Government and Opposition to make compromises where the protection of fundamental human rights and freedoms are concerned because the result is usually a safer piece of legislation.
The lesson to be learnt from this is that a final 39-0 vote is better than the unconstitutionality of the Maxi-Taxi Act in 1992.
Last week, the Sunday Guardian revealed the existence of a contract between an entity called The Group DC led by Arthur Collins and based in Washington, DC, and the Ministry of Finance that was signed on October 31, last year by Ms Suzette Taylor-Lee Chee, Ag Permanent Secretary in the Ministry of Finance.
There was never any public revelation of this decision by the Government to commit US$2.4 million of taxpayer funds to pursue lobbying activities for the Government until the Sunday Guardian broke the story last week.
However, it seems as though there was a gamble, not only in the decision to hire a lobbyist, but also in the identity of the lobbyist chosen. According to an article in The Hill published on June 30, 2009, by Kevin Bogardus, the following was said about Arthur Collins:
“Besides serving as a strategist for Obama during the then-Illinois senator’s presidential run last year, Collins also served as a public liaison for the administration’s transition team. Additionally, Collins was a senior adviser to Sen John Kerry (D-Mass) during his 2004 White House run, and serves as treasurer for the Congressional Black Caucus Political Education and Leadership Institute.”
With these credentials, it will be difficult for Arthur Collins and The Group DC to exert the kind of influence in Washington today that they might have been able to exert before January 20, this year. It seems that the Government gambled on signing a contract with Arthur Collins’ group before the November 8 election last year because they believed that Hillary Clinton was most likely going to the win the election.
What was the reason for Suzette Taylor-Lee Chee signing the contract on October 31 instead of being told to wait until after November 8? With Donald Trump winning the election, this country is now saddled with a lobbyist who does not have the political clout in Washington that he might otherwise have had if Clinton had emerged victorious. In the meantime, the country is now obligated to pay Arthur Collins and his group US$300,000 every quarter until the expiration of the contract in 2018.
We know from Dr Rowley that Arthur Collins and his group were not responsible for the phone call between President Trump and the Prime Minister. According to Dr Rowley in the House of Representatives on Thursday February 23:
“Madam Speaker, these are—I do not think it is funny, but it is not funny, and then there are demands that I tell you what the conversation is with Donald Trump, Madam Speaker, I was home on a weekend when I was informed that the President of the United States would like to speak with me. It had nothing to do with our lobbyist and it did not cost Trinidad and Tobago a cent.” (Hansard, February 23, 2017, p 99).
It would have been difficult for Arthur Collins and his group to arrange such a phone call because they simply do not have the kind of influence with the Trump administration that they would have had with the Obama administration or possibly a Clinton administration. This is a primary source of difficulty for the country now because our lobbyist simply does not have the kind of political weight that he could have had if the political outcome last November had gone the other way.
Indeed, in a 21-page letter of proposal for the provision of lobbying services for the Government addressed to the chairman of the Central Tenders Board dated October 3, 2016, the following proposition was advanced on page 5 of the letter:
“On January 3, 2017, the US legislative branch will convene for the 115th Congress. In addition to new Members of Congress being sworn in and changes in seniority, there is a high probability of a shift in majority party control in the US Senate….”
This projection did not come to pass for the Senate, while candidate Trump dropped in the polls in October following the release of the Billy Bush tapes and on October 28, Newsweek was reporting that Nate Silver and the FiveThirtyEight group were projecting that Clinton had an 81.2 per cent chance of winning the election and Trump had an 18.7 per cent chance of winning the election. After the third and final debate in October, Clinton had opened up a 12-point lead in the ABC News tracking poll.
Based on these sources, the Government may have gambled that Clinton was going to win the election so they signed a contract with a lobbying firm that had such solid Democratic Party credentials. On October 31, the Ministry of Finance signed a contract with Arthur Collins and The Group DC and on November 8, Donald Trump was elected President. Additionally, for the first time since the election of Herbert Hoover in 1928, the Republicans now controlled the White House, the Senate and the House of Representatives.
Could the Government have waited just nine more days for the election, or was there some other factor that led the Government to instruct Suzette Taylor-Lee Chee to sign the contract before the election?
Last Tuesday in the Senate, the Government made good on its promise to cease bringing to Parliament any legislation that may require a three-fifths majority in cases where it is possible that there might be the need for such a majority owing to the fact that there might be a human rights infringement.
The bill before the Senate for Second Reading last Tuesday was the Miscellaneous Provisions (Trial By Judge Alone) Bill 2017. In seeking to make amendments to the Offences Against the Person Act and the Criminal Procedure Act, the bill was making adjustments to the existing practice of trial by jury.
There is a view that such an alteration to this hallowed process ought to have been accompanied by a certificate confirming that the bill was going to be inconsistent with sections 4 and 5 of the Constitution and that a three-fifths majority would be required. However, the Government has decided to gamble on proceeding with this legislation without adopting the three-fifths majority option.
When alterations to the court trial process have been made in the past, Parliament was presented with a bill that required a three-fifths majority in both Houses of Parliament. This was very clear in the case of the amendment to the Evidence Act that was undertaken by Act No 2 of 1990 which abolished the right of the accused to make an unsworn statement from the dock during a trial. That bill was passed with a three-fifths majority in both Houses.
There was perhaps an even greater cause for concern with the current bill before the Senate in which two of the amendments to the Offences Against the Person Act appear to traverse ground upon which the judiciary has already made clear pronouncements of unconstitutionality.
In his contribution to the debate, Opposition Senator Gerald Ramdeen told the Senate that the proposed amendments to sections 4A(6) and 4A(7) had wording that had already been assessed by Mr Justice Smith in July 2009 and Mr Justice Kokaram in April 2010. In both instances, these judges had declared these sections unconstitutional.
The gamble by the Government in bringing to Parliament legislative clauses that had already been deemed unconstitutional is startling. Parliament cannot cure the unconstitutionality by simply repeating them again for enactment with a word or two changed here and there.
However, Parliament does have the right to enact legislation that is at variance with the human rights provisions of the Constitution if it brings such legislation to Parliament with a requirement for a three-fifths majority. The Government has decided that it no longer intends to proceed on such a basis.
In his order in the matter of Evelyn v Attorney General (CV 2007-04514), Mr Justice Smith held, inter alia, that:
“2. Section 4A(6) of the Offences Against the Person Act Chapter 11:08 be modified by deleting the words ‘until the President’s pleasure is known’ and substituting therefore the words ‘until the Court’s pleasure is known’.
3. Section 4A(7) of the Offences Against the Person Act Chapter 11:08 is unconstitutional as it offends against the principle of the separation of powers enshrined in the constitution.”
In his order in the case of Mukesh Maharaj v Attorney General (Claim No 2009-00409), Mr Justice Kokaram held at paragraph 48 of his judgement as follows:
“The Claimant’s sentence should therefore be modified to read ‘at the Court’s pleasure’ instead of ‘the President’s pleasure’. In this way the section is sanitized from any element of unconstitutionality. On the other hand, however, section 4A(7) OAP is wholly unnecessary and is in conflict with the constitutional principles discussed. This section purports in its entirety to deal with the manner and the length of the client’s detention. It usurps the judicial function of sentencing and is unconstitutional. There is no useful purpose to be served in modifying this section and it is struck down altogether.”
The fact that both sections have been brought back to Parliament in this Trial By Judge Alone Bill without any heed being paid to the opinions of these two judges is a matter of grave concern. According to the Bill Essentials on the Parliament web site, the words that offended both Justices Smith and Kokaram in relation to “the President’s pleasure” are still there. In respect of section 4A(7), the violation of the separation of powers principle that offended both Justices Smith and Kokaram are still there.
So why did the Government bring these clauses back to Parliament virtually word-for-word armed with the knowledge that two High Court justices had already deemed them unconstitutional, and in one instance had proposed wording that could have cured section 4A(6)? Section 4A(7) seems incurable.
What is the gamble here? Senator Ramdeen was passionate in his presentation last week. He had been praised before by Minister of Finance Colm Imbert for his work on the FATCA Joint Select Committee. Now he has brought before the Parliament a matter of substance that will require a response from the Attorney General. Why is the Government gambling on unconstitutionality as part of its three-fifths majority avoidance strategy?
The recent announcement by the Prime Minister that he was turning to former UNC attorney general Ramesh Lawrence Maharaj to assist the Government with the revival of the death penalty caused some eyebrows to be raised.
One eyebrow was raised at the prospect of Prime Minister Rowley sidestepping his attorney general to reach for the services of Mr Maharaj on a matter that had now been thrust into the centre of the Government’s crime-fighting repertoire. The other eyebrow was the public endorsement of the death penalty after having voted against the 2011 bill brought by the People’s Partnership government to get around some of the obstacles that had been created by the Privy Council.
That bill, the Constitution Amendment (Capital Offences) Bill 2011, required a three-fourths majority and had as its intention the amendment of section 6 of the Constitution to create an additional exception to the human rights provisions in the Constitution titled Exceptions for Capital Offences.
At the final stage of voting, there were 29 government MPs voting in favour and 11 of the 12 opposition MPs voting against. The bill, accordingly, failed. One does not know if the brief that has been handed to Mr Maharaj includes any legislative proposals or whether he is to advise on procedural matters only as a means of delivering on his mandate to resume the death penalty again.
The reality is that the constitutionality of the death penalty had been confirmed in the case of De Freitas v Benny (1976) AC 239 and reaffirmed in Abbott v Attorney General of Trinidad and Tobago (1979) 1WLR 1342. In this latter case, the issue of delay of execution was advanced as a possible means by which the actual execution itself could be rendered unconstitutional. However, Lord Diplock deemed that the delay was measured in months and therefore tolerable. Nevertheless, he left open the door to a future consideration of delay measured in years which he did not answer.
The turning point on this issue got its first recognition when the Privy Council divided three-two over the case of Riley v Attorney General of Jamaica (1983) 1AC 719 in which a central issue was the question of delay of execution. Lords Diplock, Hailsham and Bridge did not agree and held that the execution should proceed, while Lords Scarman and Brightman dissented.
Ten years later, the death penalty landscape was to be irreversibly changed with the Privy Council decision in the case of Pratt and Another v Attorney General of Jamaica (1993) 43 WIR 340 in which the board held that delay of execution can render the actual punishment unconstitutional unless certain guidelines were met. The imposition of a five-year rule between conviction and execution provided for two years for the appellate process and a further three years for constitutional motions and petitions of reprieve.
The petitions of reprieve to international bodies such as the United Nations Human Rights Commission and the Inter-American Court of Human Rights did constitute an element of time consumption which caused T&T to pursue withdrawal from both the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) as well as from the American Convention on Human Rights.
On May 26, 1998, T&T denounced the First Optional Protocol as well as the American Convention on Human Rights and then immediately re-acceded to the First Optional Protocol, adding a reservation that removed the right of appeal for death row prisoners. One year later, on May 26, 1999, the withdrawal of T&T from the American Convention on Human Rights took effect. Finally, on March 27, 2000, T&T denounced the First Optional Protocol outright with effect from June 27, 2000.
It was obvious that these moves were designed to allow the State enough time to meet its Pratt and Morgan timelines by seeking to eliminate the right of death row prisoners to petition these international human rights bodies.
In September 2000, the Privy Council literally tightened the noose (no pun intended) around the death penalty itself with their decision in Lewis v Attorney General of Jamaica (2001) 2 AC 50 in which they overturned their earlier decision in De Freitas v Benny some 25 years before by now allowing judicial review of the proceedings of the Mercy Committee as well as requiring states to wait on international bodies to report on human rights petitions as well as taking prison conditions into account.
Another issue arose soon after in 2002 in Reyes v R (2002) 2 W L R 1034, R v Hughes (2002) 2 W L R 1058 and Fox v R (2002) 2 W L R 1077 in which the Privy Council relaxed the mandatory sentencing guidelines for judges in capital cases and permitted discretionary sentencing. That issue had an embarrassing setback in T&T in two cases Balkissoon Roodal v The State (2003) 64 WIR 270 and Matthew v The State (2004) UKPC 33 in which the former introduced discretionary sentencing and the latter reinstated mandatory sentencing.
How Mr Maharaj will navigate his way through this maze of legal obstacles without legislative amendment is left to be seen.
The United Kingdom officially launched its Brexit policy last Wednesday under Article 50 of the Treaty of Lisbon which permits member states of the European Union to withdraw. That has now opened a two-year window for a negotiation that will likely end with a formal divorce by March 29, 2019.
Mixed into the commencement of this process is a parallel development in Scotland where the Scottish Parliament voted 69-59 in favour of seeking a second referendum on Scottish independence by 2019 at the latest. It is clear that the Scottish First Minister, Nicola Sturgeon, is seeking to outflank these Brexit negotiations by making a political move of her own that will seek Scottish secession as a means of preserving Scotland’s membership of the EU while the remainder of the United Kingdom seeks Brexit.
This is a complex political situation that has the potential to create a showdown between Westminster and Holyrood with the Scottish Nationalist Party (SNP) hoping for fuel for this fire to come from the negotiations between Brussels and London.
In her March 29 letter to the President of the European Council, Prime Minister Theresa May said:
“On 23 June last year, the people of the United Kingdom voted to leave the European Union. As I have said before, that decision was no rejection of the values we share as fellow Europeans. Nor was it an attempt to do harm to the European Union or any of the remaining member states. On the contrary, the United Kingdom wants the European Union to succeed and prosper. Instead, the referendum was a vote to restore, as we see it, our national self-determination. We are leaving the European Union, but we are not leaving Europe—and we want to remain committed partners and allies to our friends across the continent.”
These sentences capture the gymnastics required to exit Europe and still have the appearance that Britain has not left Europe by virtue of the trade and other deals that will have to be negotiated.
What does stand out in the letter is the interpretation of the result of last year’s Brexit referendum as “a vote to restore….our national self-determination”.
National self-determination for all of the United Kingdom has, in many respects, sparked a rise in Scottish self-determination as a by-product of this process seeing that, on a disaggregated basis, Scotland voted in favour of remaining in the EU by a margin of 62 per cent to 38 per cent with an electoral turnout of 67 per cent.
What Nicola Sturgeon has injected into her campaign for a second bite at the independence referendum cherry is the right of Scotland to exert some measure of self-determination about whether or not it should join the rest of the United Kingdom in going ahead with these Brexit negotiations.
With Brexit being negotiated in Brussels, this sidebar contest between Westminster and Holyrood will be a very interesting dimension in the process. Theresa May, in her statement to Parliament right after confirmation came that her letter had been delivered in Brussels made it clear that after Brexit European Union law would no longer apply in the United Kingdom.
With Scottish independence being articulated once more, the terms of that battle will be very different. In the last independence referendum in 2014 there was no issue of Brexit on the table for discussion. Now the independence movement in Scotland will add the desire to remain in the EU as part of its menu to justify its case for secession from the UK at a time when the UK is negotiating its own secession from the EU.
The Secretary of State for Scotland in the British Cabinet, David Mundell, tweeted last Tuesday as follows:
“#indyref2 before Brexit process is complete is unfair, so can’t be agreed. Nor will there be any negotiations in response to such a request.”
Nicola Sturgeon and the SNP got the support of the Scottish Green Party to earn a majority vote in the Scottish Parliament last week which now puts her on a collision course with London on this issue.
Scottish self-determination is being mixed with the disaggregated vote from last June’s Brexit referendum to create a cocktail that, for the SNP and the Green Party, will, hopefully for them, lead to simultaneously staying in the EU, while breaking away from the United Kingdom at the same time.
For other countries around the world who will have to consider entering into new treaty arrangements with the United Kingdom post-Brexit, what are the challenges? Many of them will seek to conclude new trade and other agreements however, will the United Kingdom of Great Britain and Northern Ireland still have within its ranks the realm of Scotland ?
Our local policymakers need to start preparing themselves for this and it should be raised at the next Commonwealth Heads of Government meeting to be held in London during the week of April 16, 2018.
We have a year to observe what will happen between Westminster and Holyrood which will be of great significance to Caricom as well as T&T. Let us have two plans of action.
Now that the FATCA legislation has been enacted in T&T after a lengthy bi-partisan battle to reach cross-party consensus comes word out of Washington that the process to repeal FATCA in the United States has begun.
Last Monday, Republican Senator Rand Paul (R-Kentucky) and Representative Mark Meadows (R-North Carolina) jointly signed a letter addressed to both Treasury Secretary Steven Mnuchin and White House Director of the Office of Management and Budget (OMB) Mick Mulvaney, serving notice of their intended filing of legislation to repeal FATCA and also calling on the Treasury Department to initiate a process of disabling the Inter-Governmental Agreements (IGAs) by which FATCA has been operationalised globally.
This is clearly an effort that is being driven by the House Freedom Caucus which is now led by Mark Meadows. Interestingly, the immediate past chairman of the House Freedom Caucus was Mick Mulvaney who is now the director of the OMB in the White House.
The opening two paragraphs of Paul/Meadows letter read as follows:
“This is in reference to the Foreign Account Tax Compliance Act, or FATCA [26 US Code 1471-1474; 26 USC 6038D], a massive, wasteful regulatory mandate that has failed in its ostensible purpose of recovering tax revenues hidden offshore. During the last Congress we introduced bills to repeal FATCA (S 663 and HR 5935), which Director Mulvaney cosponsored. We plan to reintroduce the same legislation in the 115th Congress, and efforts are underway to include it in any tax reform legislation.”
After a round of golf with President Trump last Sunday, Rand Paul spoke to the media to say that their discussions had gone well and it seemed as though both tax reform and another shot at healthcare were on track. Interestingly, the other person playing golf with them last Sunday was Mick Mulvaney.
Now comes the first shot in FATCA repeal with the filing last week of legislation in the US Congress that will form part of President Trump’s tax reform agenda. The Paul/Meadows letter did not stop at just the tax reform package, but also took aim at the IGAs. According to them:
“In addition to these legislative efforts, we wish to bring to your attention steps that can be taken by the Trump Administration with respect to FATCA. These steps mainly concern so-called ‘intergovernmental agreements’ (IGAs) used by the Obama administration to implement FATCA. This was done largely because FATCA, on top of its other defects, failed to take into account other countries’ privacy laws that would preclude their financial institutions’ reporting private personal data to the Internal Revenue Service. The IGAs oblige other countries—under threat of substantial financial sanctions—to enact domestic legislation abrogating their privacy laws and mandating delivery of the data demanded. In addition, many of the IGAs commit the US to ‘equivalent’ levels of data exchange from domestic American financial institutions, a costly endeavor for which Congress rightly has refused statutory authority.”
Both Paul and Meadows have recognised the legal and constitutional weaknesses of the IGAs. For the time being, the US in under no obligation to provide tax information to the other parties who are signatories to their IGAs however, the other parties have imposed on themselves a legal obligation to provide tax information to the US under pain of “substantial financial sanctions” thereby creating a one-way street.
The Paul/Meadows letter calls on the Treasury Department to implement the following four policy initiatives:
1. Issue a statement of administration policy to the effect that the Trump administration is committed to the repeal of FATCA.
2. Instruct the Treasury Department’s Office of International Affairs and other elements of the department that may be involved to cease all efforts to negotiate, sign, and implement IGAs.
3. Announce that the IGAs are under legal review of their authority and that if they are found to be legally infirm they may be decalred invalid ab initio with immediate effect or terminated upon expiry of the one-year’s notice specified.
4. Under the broad authority FATCA grants the treasury secretary, deem all impacted foreign institutions compliant on a temporary basis pending outcome of the legal review of IGAs. The IRS should also be instructed to suspend enforcement of provisions impacting individual taxpayers.
This is a major initiative that is connected to tax reform. While it may be too small to be considered a trade-off with the House Freedom Caucus in exchange for some concessions on healthcare reform which the House Freedom Caucus effectively blocked a few weeks ago in the US House of Representatives, it would represent an implementation of a policy position of the Republican Party based on what was stated in the 2016 Republican Platform that was approved at their convention in Cleveland last July.
Perhaps the most stinging blow to the former Obama Administration in the Paul/Meadows letter was this particular sentence:
“In short, the IGAs are a characteristic example of the previous administration’s inclination for abusing its Executive power. For that reason, these same abuses are amenable to Executive action to mitigate the ongoing damage caused by FATCA, pending its repeal.”
On April 13, 1970, Astronaut Jim Lovell repeated something that Astronaut Jack Swigert, on the Apollo 13 spacecraft, told Mission Control in Houston: “Houston, we’ve had a problem.”
In 1995, a movie by the name, Houston We Have A Problem, based on a misquote of Jim Lovell was made. My column today is based on the title of the movie in relation to Prime Minister Rowley’s recent visit to Houston for talks with some of the world’s leading energy companies.
Shortly after the Prime Minister departed Houston, the OWTU and JTUM leader Ancel Roget responded to a decision by bpTT to withdraw the final construction of its Angelin platform from TOFCO in La Brea and sent it to be completed elsewhere by saying that BP could “take its platform and go.”
In a statement, bpTT said: “bpTT remains fully committed to maximising local content in all our operations, however, given the compressed project timelines and other competitiveness factors for the Angelin project, local fabrication is no longer a feasible option.”
It was relocating the project elsewhere. The “Houston we have a problem” aspect of this scenario is that T&T is beginning to have competitiveness issues in the energy sector with this decision on the Angelin platform.
Prime Minister Rowley’s response to the comment by Roget was made on the CNC3 programme The Morning Brew with host Hema Ramkissoon last Wednesday when he said: “That is not really the kind of thing that causes somebody in a BP boardroom or elsewhere to say Trinidad is the place we want to put our money.”
In conceding that he was aware that BP was going to pull the Angelin project out of La Brea before he even arrived in Houston, the Prime Minister is telegraphing to the nation that he went there to negotiate, not from a position of strength, but rather to seek concessions in asking BP to reconsider its decision.
He conceded that T&T “is still a free country and leaders choose to lead their followers the way they see fit.” This column was prepared before any response was made by Roget.
The various private sector bodies have condemned Roget’s statement outright saying that it does not bode well for the competitiveness of the country’s energy sector and transmits an air of militancy in the industrial relations climate that is not attractive to foreign investment.
The Prime Minister did not hide the fact that he was aware of that reality when he said that companies like BP “don’t owe us anything , what they look for is the best outcome for their shareholders.”
The way that this discussion is emerging is that there is an ever-widening gap between the state control of the economy model and the foreign investment free market economy model. As that gap continues to widen in these difficult economic times, the Government has to make a choice between one model or the other.
Having just completed a round of discussions and negotiations in Houston where he was unable to convince BP to change its mind on the Angelin project, he must know that he is up against an industrial relations climate that has the potential to diminish his efforts on behalf of the country.
He told Hema Ramkissoon that if he was sitting in front of Roget, he “would have no difficulty telling him it was not a helpful statement.” In the context of the MOU between the PNM and JTUM that he signed with Roget on August 27, 2015, one gets the sense that the strain of holding it together is becoming extremely difficult to bear.
In the same breath that Roget made his “take your platform and go” remark, he also said that Rowley is walking a “Kamla road” and that he could suffer the same consequences as the former Prime Minister insofar as he aided and abetted her electoral defeat in 2015. That is the closest that he has come to tearing up the MOU, but at the time of writing that had not occurred.
The investors in Houston are looking at what is happening on the industrial relations front in this country, especially in the energy sector. The unions are not going to back down from their firm ideological beliefs that are not welcoming to foreign investment unless there are industrial relations agreements that they are comfortable with. That attitude has been cultivated over decades of struggle on their part to arrive at a place that they feel fits comfortably into the Williams narrative of the PNM’s Chaguaramas Declaration of 1970.
The challenge for Rowley today is to find a way to slacken the rigidity of that firmly held PNM model of state control of the economy at a time when the energy sector globally has changed and this country has suddenly found itself so uncompetitive that foreign companies will not come here for meetings, but rather he had to go there to meet them.
The underlying storyline of this emerging scenario is simply nothing more than “Houston we have a problem.”
Prime Minister Theresa May stunned the United Kingdom last Tuesday when she announced that she had just told her Cabinet of her decision to seek a parliamentary vote to have an early general election on June 8.
A general election was not due until May 7, 2020. However, under the Fixed-term Parliaments Act 2011, an early general election in the UK is possible based on the provisions of section 2 of that Act which provides for two exceptions to the fixed date (either a formal motion passed by a two-thirds majority of the total membership of the House of Commons seeking an early general election or a successful motion of no confidence in Her Majesty’s Government passed by the House of Commons by simple majority that fails to attract a subsequent majority vote of confidence challenging it within 14 days of its passage).
The United Kingdom had a general election in May 2015 and there was a referendum on Brexit in June 2016. On March 29, Prime Minister May wrote to the President of the European Council invoking article 50 of the Treaty of Lisbon thereby announcing officially Britain’s desire to withdraw from the European Union.
She had consistently rejected the idea of another general election before the due date in 2020. However, in more recent times, she formed the view that the forces at Westminster were not aligned in a manner that would permit her enough negotiating strength to carry forward with the secession discussions with Brussels. Her examples of this discord at Westminster ranged from the public views of the Labour Party, the Liberal-Democratic Party, the Scottish National Party and some unelected members of the House of Lords.
Having made the announcement at a podium bereft of the seal of government outside of her official residence at 10 Downing Street on Tuesday morning, she moved a motion calling for an early parliamentary general election in the House of Commons after Prime Minister’s Question Time on Wednesday afternoon. By a vote of 522 to 13 the resolution calling for an early parliamentary general election was carried (it needed 434 out of the 650 MPs for it to get the requisite two-thirds majority vote). Of the major parties, the Conservatives had 325 of their 330 MPs voting in favour, while the Labour Party was divided with 174 of its 229 MPs voting in favour, nine of their MPs voted against and the rest abstained.
Early opinion polls show that Prime Minister May and her Conservative Party enjoy a twenty-point lead over their nearest rival the Labour Party. The Prime Minister’s calculations are that she will win a very large majority in the House of Commons which will give her a mandate to carry through with some tough negotiations with Brussels in order to implement Brexit.
She has already made her first election gamble outside of calling the date itself and that is her refusal to take part in any televised debates during the campaign.
In my column on April 2, I highlighted the fact that the Brexit secession for the UK had begun. One of the issues that I flagged was the matter of the resolution passed by the Scottish Parliament calling for a referendum on Scottish independence by 2019.
The Scottish First Minister, Nicola Sturgeon, has already indicated that her Scottish National Party will still make its case for a referendum on independence after the general election. She described Theresa May’s decision to seek this early general election as “a huge political miscalculation”. In the last general election in 2015, the SNP won 56 of the 59 seats in Scotland and their line on the parliamentary resolution for the early election was to abstain.
This general election is designed to strengthen the hand of the British Government in moving forward with its Brexit negotiations. The SNP is still seeking to have another bite at the self-determination cherry in the midst of this.
The situation in Scotland can be influenced very much by this general election as the SNP have to do as well as or even better than 2015 if they are to press their case for a second referendum on independence. If they should lose ground on June 8 their cause will be hampered and their route to another independence referendum will be more tortuous.
Caricom governments have to keep a close eye on what is taking place in the UK as one does not know if this general election will be turned into a second referendum on Brexit for those who voted in favour remaining in the European Union (about 48 per cent) and whether they may decide where to cast their vote based on which party is most likely to have the softest exit from the EU as opposed to the 52 per cent who voted to leave and would want the firmest possible terms of separation.
The next Commonwealth Heads of Government meeting will be held in London during the week of April 16 next year. The outcome of the June 8 general election will determine which British Government policy Caricom countries will engage.
Last week, President Anthony Carmona addressed UWI students at the Cave Hill Campus in Barbados on the subject of the CCJ. He expressed his disappointment at the fact that only four countries out of the 12 independent countries in the region have signed on to the appellate jurisdiction of the court as opposed to the original jurisdiction of the court to which all CARICOM countries belong.
In his address, President Carmona raised the issue of acceptance of the CCJ as another step towards strengthening “Caribbean identity”. In going down this particular pathway, the President may, in fact, be addressing the very reason why the CCJ has not caught the attention of the Caribbean public with the arguments about “Caribbean identity” and “completing the cycle of independence”.
The latter was the primary argument that had been made by some judges on the CCJ as the reason for adopting the court as an automatic replacement for the Judicial Committee of the Privy Council.
In St Vincent and the Grenadines in the November 2009 referendum on the omnibus Constitution Bill (of which the CCJ was a part), the bill was defeated by a margin of 22,493 to 29,019.
In Grenada in November 2016, the reform issues were separated and each one was voted on separately in the referendum that was held on the amendments to the Constitution. On the specific issue of the CCJ replacing the Privy Council, the actual vote rejecting this was 9,637 to 12,611.
The issue of Caribbean identity raised by President Carmona must be debated. Some countries in the region, such as Antigua and Barbuda, Barbados, St Lucia and others have adopted the knighthood as part of their national awards. Other countries in the region that are still monarchies and have Queen Elizabeth II as their Head of State also make use of some aspects of the British honours system for national awards.
The knighthood is the gold standard of Caribbean accomplishment in public affairs, while membership of Her Majesty’s Privy Council that carries with it the title of “The Right Honourable” is another title deeply cherished by political and judicial elites in our region.
Our regional history is replete with public expressions of loyalty to the British Crown, the use of British honours and reverence for our British heritage. Yet, it is surprising that so many who advocate for the switch from the Privy Council to the CCJ do not understand the deep-seated cultural and identity factors that bind our elites to those processes which is a confirmation of the connection.
The knighthood is not going anywhere anytime soon across the region for those countries that still use it. The membership of Her Majesty’s Privy Council is part of a convention established for the first two Chief Justices of the CCJ.
The Caribbean integration movement was founded in Montego Bay, Jamaica, in September 1947 when the Secretary of State for the Colonies, Arthur Creech-Jones, convened the Conference On The Closer Association of the British West Indian Colonies. The concluding resolution of that conference humbly affirmed “its loyalty and allegiance to the Person and Throne of His Most Gracious Majesty King George the Sixth” with “members of the Conference rising to their feet while recording their unanimous agreement”.
In 1955, Eric Williams told us that the British Constitution suitably modified was good enough for us because it was good enough for Great Britain. In 1962, Norman Manley argued in Jamaica that our system of government had evolved as part of our heritage of which “we should not be ashamed”. In 1976, the Williams government decided not to abolish the Privy Council as the final court of appeal for this country when the constitution was changed.
There are some who have argued that it is a matter of self-confidence that the CCJ has not replaced the Privy Council. On the contrary, it is a matter of identity that goes to the heart of why knighthoods and membership of Her Majesty’s Privy Council are so deeply desired by so many Caribbean political, public service and judicial elites.
President Carmona’s arguments are more an expression of his frustration at the lack of change than anything else. However, he must understand the nature of the Caribbean psyche that yearns for the symbols of the British honours system as a means of earning global identity and recognition.
During the period of the People’s Revolutionary Government (PRG) in Grenada between 1979 and 1983, People’s Law No 84 abolished appeals to the Privy Council. After the collapse of the PRG, the Government of Grenada re-instated appeals to the Privy Council in 1991 without objection by virtue of the Constitutional Judicature (Restoration) Act of 1991. Why?
When the referendum was held in Grenada last November, those youths of the early 1980s whose consciousness would have been raised by these reforms did not support the amendment. The revolutionary spirit is gone.
Awarding knighthoods and membership of Her Majesty’s Privy Council with such pride and veneration undermines the argument for replacement of the Privy Council with the CCJ and perhaps explains the slow pace of change.
Back in 1998-99, when then attorney general Ramesh Lawrence Maharaj was seeking to introduce the Panday government’s parliamentary reform to permit parliamentary committees to have oversight of the work of government agencies, departments and service commissions, there was a major uproar in the society that this was undemocratic.
In making concessions on the amendment to section 66 of the Constitution that only required a simple majority, the Panday government removed the Judicial and Legal Service Commission from the requirement of being subject to the direct scrutiny of Parliament. In the face of virulent attacks on the measure led by the Six Wise Men (as they were called at that time), the following compromise was made:
“66C. (1) Sections 66A and 66B shall not apply to the Judicial and Legal Service Commission.
(2) The Judicial and Legal Service Commission shall submit to the President before 1st October, in each year, commencing in the year 2000, a report on the exercise of its functions and powers in the previous year, describing the procedures followed and any criteria adopted by it in connection therewith, and the President shall cause the report to be laid within sixty days thereafter in each House.”
With that compromise, the Judicial and Legal Service Commission was spared the reality of being summoned to appear before a special joint select committee of Parliament to answer questions about its performance over the preceding year. This was deemed to be an attack on judicial independence if the change was not made.
While we wallow in the blissful ignorance of not knowing any better about how other parliamentary systems operate where the relationship between the legislature and the judiciary is concerned, the Westminster practice has moved on to embrace precisely such a mechanism in the aftermath of the Constitution Reform Act 2005.
According to a 2015 book entitled “The Politics of Judicial Independence in the UK’s Changing Constitution” published by Cambridge University Press, the authors Gee, Hazell, Malleson and O’Brien conclude as follows:
“Our findings show that judicial accountability has increased in many areas, sometimes quite dramatically. The senior judiciary has shown itself to be far less conservative than might be expected in its willingness to embrace greater transparency. A wide array of information on the functioning of the courts is now published by the judiciary through websites and reports. Much judicial business which was previously conducted behind closed doors in the old Lord Chancellor’s Department is now out in the open; annual reports and statistics are produced by the Ministry of Justice and the judiciary-related bodies. This is not just a consequence of the constitutional changes, but results from wider initiatives in Whitehall and Westminster to make government more open and accountable.” (p.256).
The current controversies involving the Judicial and Legal Service Commission and some of its recent appointments of judges to the High Court bench would not enjoy the level of secrecy that our system of government has always tolerated. The effect of the resistance to a more transparent approach to the administration of justice will lead to a rise in distrust by the general public who see senior members of the bar making forceful public comments critical of the Chief Justice and the JLSC and simply wonder what is going on.
All of this is happening at a time when there are calls for T&T to accept the appellate jurisdiction of the CCJ in addition to the original jurisdiction of the CCJ under which we already function. This is where the fallout of the current controversies will end up if there is no credible resolution to the controversy du jour.
The Chief Justice and the JLSC may overcome their current political difficulties, but public confidence will be greatly undermined if there is no transparency in getting to the bottom of the whole fiasco. With appointments, resignations and purported re-appointments being tossed around in a manner that does the judiciary no favours, the general public are powerless to have any voice in this process because their representatives are debarred from any direct interaction with the JLSC because of the compromises that were wrought in 1998-1999 by judicial and political elites who thought it best to demand a waiver of appearance for the JLSC before Parliament.
While we continue to cling to these outmoded thought processes, the Westminster model itself has moved on to shatter the secrecy that once shrouded the judiciary. Gee, Hazell, Malleson and O’Brien go on to say in the conclusion to their 2015 book as follows:
“The increasing trend for the senior judiciary to give evidence to select committees has also been facilitated by the creation of two new specialist select committees : the Lords Constitution Committee and the Commons Justice Committee, both of which have produced several reports on judicial matters.” (p.256).
The Westminster model has progressed and we are unlikely to make any advances on judicial accountability precisely because the culture of secrecy continues to be the hallmark of our administration of justice. The current situation is a battle between secrecy and transparency and, so far, secrecy is winning.
With the recent Privy Council decision in favour of Reginald Dumas and his challenge to the appointments made by the President to the Police Service Commission after parliamentary ratification, the spotlight has now turned to whether or not the Judicial and Legal Service Commission (JLSC) is properly constituted.
The JLSC is established by section 110 of the Constitution and it “shall” consist of (i) the Chief Justice, (ii) the Chairman of the Public Service Commission; and (iii) three appointed members who shall be (a) a sitting or former judge, and (b) two persons who have legal qualifications at least one of whom should not be in active practice.
In recent times, the issue of the age of the members of the JLSC has arisen in the context of whether or not the commission is properly constituted.
The chairman of the Public Service Commission (PSC) is listed there in an ex-officio capacity with no requirement for legal or age qualifications because the tenure of the PSC chairman is governed by the provisions of section 126, while the Chief Justice has a retirement age set at 65 by sections 106(1) and 136(1) of the Constitution.
The wording of section 110 of the Constitution may lead one to believe that the framers of the Constitution only envisaged that there should be one sitting or former judge on the JLSC because no specific provision is made otherwise.
For the remaining two members, “legal qualifications” are required for anyone being appointed to those positions.
This may require some interpretation in respect of whether being called to the Bar is all that is required or whether having an LLB and/or an LLM and/or a PhD/D Juris in Law (without being called to the Bar) will suffice as “legal qualifications” seeing that there is no definition.
In other words, is being qualified as an advocate or instructing attorney the only consideration with respect to “legal qualifications” or would someone who is qualified to understand the law (as opposed to practicing it) be considered to have “legal qualifications”? There is the presumption that being called to the Bar is what having “legal qualifications” means.
One of the two remaining members of the JLSC is permitted to be in active legal practice which suggests that they must have been called to the Bar. The other member may have “legal qualifications” however defined and may not be in active legal practice. The three appointed members are required to hold office in accordance with section 136 of the Constitution (which is the same section that applies to the Chief Justice), but subject to section 126(3)(a).
Section 126(3)(a) proposes that the term of the appointment of these appointed members could range between three and five years which could imply that such variation is required in order to satisfy the possibility of a person so appointed avoiding exceeding the age of 65 specified in section 136(1).
Section 136(3) specifies that nothing done by the officer who has attained the age of 65 “shall be invalid” if he attains the age at which he is required to vacate his office (presumably 65 or such other age as may be prescribed).
It is obvious that subsections 136(1) and (3) relate to making appointments of people who are under the age of 65 as both subsections speak to the future of “attaining” the age of 65 or such other age as may be prescribed.
As a consequence, section 110(3)(a), envisages a sitting judge being appointed who is under the age of 65 or a former judge who is no longer on the bench and who is under the age of 65 when the simple wording of the subsection is cross-referenced against subsections 136(1) and (3).
Section 110(3)(b) envisages two people who are under the age of 65 when cross-referenced against subsections 136(1) and (3).
In respect of the three appointed members, it would appear that successive presidents may have erred in appointing people to the JLSC who have already retired from the bench after they had turned 65.
Seeing that there is a vacancy on the JLSC for one more member, it will be necessary to determine which category is missing after determining the categories into which the other two appointed members actually fall.
Based on the length of time that such a vacancy has existed, it is possible that there might be the need to interpret what is a reasonable period of delay between the creation of a vacancy on the JLSC and the appointment by the President to fill the vacancy. Perhaps, the more compelling questions are how long has a vacancy existed on the JLSC and why has it not been filled ?
It is true that the JLSC can function with only a quorum of three however, that is determined on the basis of a membership of five. The spotlight has suddenly been shone on the JLSC because of the recent controversies related to appointments made to the judicial bench from the magisterial bench.
The Dumas Privy Council judgment opens the door to this scrutiny of the membership of the JLSC.
The recent decision by the Privy Council in the matter of the Attorney General v Dumas has opened the door to public interest litigation in a manner that now places all public authorities—from President to Prime Minister and Cabinet to commissions—in a place where they can all be challenged in court for the validity of any of their decisions.
It is a landmark judgment for which Mr Dumas must be openly congratulated for having the fortitude to pursue notwithstanding the great personal financial risk that he faced.
According to paragraph two of the judgment:
“The respondent, Mr Dumas, as an engaged citizen with an interest in the good governance of the Republic, seeks a determination of the meaning of the phrase ‘qualified and experienced in section 122(3) of the Constitution and declarations that the nomination and appointment of two persons to the Police Service Commission under that section of the Constitution were invalid because, he asserts, the nominees lacked the specified qualifications and experience. Mr Dumas claims no personal interest in the appointments. He asserts a right as a citizen to seek the assistance of the courts in the upholding of the Constitution.”
It is clear from this that Mr Dumas had no personal interest in the matter other than seeking the assistance of the courts in upholding the Constitution. The Privy Council commented on, and agreed with, the decision of the Court of Appeal of T&T (Jamadar, Bereaux and Smith JJA) to reverse the decision of Mohammed J at paragraph 12 of their judgment as follows:
“The Court held that Mr Dumas had an arguable case on a matter of public importance, that he was not a busybody or acting for a collateral purpose, and that he had demonstrated the competence to litigate the matters effectively. It stated that there was no established tradition in Trinidad and Tobago of the Attorney General raising proceedings in the public interest to make sure that the rule of law was observed. The citizen had a legitimate interest in upholding the Constitution and the rule of law.”
The decision of Mohammed J was delivered on July 22, 2014, and the Dumas appeal was determined by the Court of Appeal on October 20, 2014, with a written judgment being delivered on December 22, 2014.
On September 7, 2015, there was a change of government and a new attorney general was appointed on September 9, 2015. The Privy Council appeal was heard on January 31, 2017.
What was most interesting in this case emerged in paragraph 27 of the judgment as follows:
“The Attorney General in his written case sought to raise new arguments which had not been presented to Mohammed J or to the Court of Appeal. The Board agreed to hear the submissions de bene esse. It will rarely be appropriate for the Board to consider submissions which have not been presented to the courts in Trinidad and Tobago. But because the appeal raises constitutional issues, because the Board is satisfied that there is no substance in the new arguments and because, therefore, Mr Dumas’s counsel is not prejudiced by the late arrival of those submissions, the Board deals with them briefly.”
The original appeal that had been filed by the Attorney General under the People’s Partnership administration had been buttressed by further points of appeal from the new attorney general in the hearing before the Privy Council on January 31 instant.
The Privy Council addressed these two new points of appeal which were outlined in paragraph 28 of the judgment as follows:
“The first submission founds on the approval by the House of Representatives of the President’s notifications and the second invokes the ouster in section 38(1) of the Constitution.”
These two points were argued by counsel for the attorney general before the Board of the Privy Council and they concluded as follows in paragraph 35:
“In his oral submissions counsel for the Attorney General cleverly sought to finesse the two new arguments by asserting that Mr Dumas’s claims went far beyond a claim of error of law and amounted to a disagreement on the quality of the nominees’ qualifications. In his reply he conceded that if the nomination and appointment were ultra vires, neither the approval of the House of Representatives nor the section 38 ouster could save them. He was correct to do so. Both of the Attorney General’s new arguments therefore fail.”
In dealing with this case, the Privy Council had before it the original points that had been litigated before the High Court and the Court of Appeal locally. However, the new Attorney General who came into office on September 9, 2015, in maintaining the appeal that had been filed by an attorney general in the previous People’s Partnership administration, added two new points of appeal for the consideration of the Privy Council.
With both of those points being dismissed together with the other aspects of the appeal, the local courts are now required to hear such challenges to appointments involving express qualifications for appointees to high office.
Last week’s decision that the 53 criminal matters that were left incomplete before former Chief Magistrate Marcia Ayers-Caesar in order to facilitate her appointment as a judge must now all be restarted is a painful one for the accused people to bear.
A statement had been made earlier that the former chief magistrate was going to resume her position as chief magistrate in order to complete her unfinished caseload. The expectations of all the accused people before her court would have been raised by that official statement.
Then Senior Counsel Pamela Elder indicated that it was not so simple for that to be done. She said that she would go to court and advise Marcia Ayers-Caesar about the meaning of the legal term functus officio. Surprisingly that had not been considered by those who made the statement that she could simply saunter back into court and pick up from where she left off as though nothing had happened in between.
Former chief justice Michael de la Bastide saw no problem with the resumption of duty, while, apart from Elder, senior counsels Israel Khan and Martin Daly also saw serious problems with this approach.
The country had previously been assured by the Chief Justice that the appointment of judges was such that “anyone who is appointed has been through one of the most rigorous selection processes you can find anywhere in the region or Commonwealth”.
For daring to question the process, Opposition Senators Gerald Ramdeen and Wayne Sturge were cautioned by Public Utilities Minister Fitzgerald Hinds about criticizing the Chief Justice.
Writing in the Sunday Guardian on April 23 instant, Richard Lord reported that Hinds said that “he had noticed for some time ‘with increasing alarm and worry’ the position taken by MPs who are also members of the legal profession. He was referring to recent calls by Opposition Senators Wayne Sturge and Gerald Ramdeen for information under the Freedom of Information Act about the recent appointment of three judges”.
Hinds went further to say that he wanted the Law Association to speak out in defence of the Chief Justice because he felt that the adverse comments being made about Archie “can only have one effect, that is to bring disrespect and disdain and a diminishing of the reputation of the Judiciary”.
Soon after Hinds made those comments, Marcia Ayers-Caesar resigned as a judge on April 27 instant, which has now opened up a huge controversy about the administration of justice in this country. The intervention by Minister Hinds pre-dated the controversy however, by the time Prime Minister Dr Keith Rowley faced Prime Minister’s Questions in the House of Representatives on May 10 instant, he had to dial back the issue of the executive interfering in the Judiciary, that had been commenced by Minister Hinds two weeks before, when asked a question by Chaguanas West MP Ganga Singh. The exchange was as follows:
“Mr Singh: Thank you, Madam Speaker. Is the Government considering measures by which the over 50 part-heard matters before the former Chief Magistrate would be dealt with?
Hon Dr K Rowley: Madam Speaker, I want to make it abundantly clear that the specific matters to which the Member refers is a matter which resides entirely within the borders of the Judiciary and this Government maintains the Great Wall of China between the Executive and the Judiciary. [Desk thumping]” (Hansard, House of Representatives, May 10, 2017, pp. 8-9).
The Government has remained silent on the matter since the Prime Minister spoke however, it was apparent that the executive, through Minister Hinds, was gearing up for a war of words with Opposition Senators Sturge and Ramdeen prior to the embarrassments that have since exposed themselves at the doorstep of the Judicial and Legal Service Commission.
Perhaps the biggest embarrassment was the statement made by the Court Protocol and Information Manager, Alicia Carter-Fisher, who gave the assurance that the chief magistrates’ docket would not be adversely affected because there were no ongoing preliminary inquiries before the then chief magistrate prior to her elevation to the judicial bench and that “she had before her paper committals which could be continued by another magistrate”.
Last week’s decision intends to give priority to those outstanding cases about which Carter-Fisher was unaware on the basis of recognizing the hardship that has already been experienced by the accused by virtue of the ongoing nature of the cases and the painful reality of having them restarted de novo because of no due diligence.
The JLSC turned against Ayers-Caesar after her resignation as a judge on April 27 instant, and brutally criticized her for not being transparent with them. That has left unanswered the question of who is responsible for doing due diligence in a process that is “one of the most rigorous selection processes you can find anywhere in the region or Commonwealth”.
Now this matter is headed to court as the saga continues, while there is also a pending FOIA request. The society awaits the Law Association meeting on June 1 to hear what is the next instalment in this ongoing soap opera.
Last Thursday the Law Association of T&T (LATT) voted overwhelmingly in favour of the resignation of the Chief Justice and members of the Judicial and Legal Service Commission (JLSC).
On a sloppy ballot paper riddled with factual and grammatical errors, the LATT voted on five resolutions all of which had the effect of demonstrating their loss of confidence in specifically named people. Perhaps the most glaring error that had to be manually corrected on the official ballot paper was the fact that Marjorie Thorpe was printed as the chairman of the Public Service Commission (PSC) and that had to be corrected to write in the name of Maureen Manchouck as PSC chairman.
Last Friday’s Guardian put this ballot paper on its front page. If this is what the LATT produced for its members to vote on then there is a deeper crisis in the legal profession than might be imagined. Surely, the LATT could have done better than that.
Perhaps it was fitting that the crisis at the top of the profession was polled on such a poorly constructed ballot paper. Putting that aside, what happens from here? There is nothing that can be done to the Chief Justice unless the Prime Minister decides to intervene in accordance with Section 137 of the Constitution. Based on the Prime Minister’s most recent statement on May 10 instant, during Prime Minister’s Questions in the House of Representatives, it does not appear that he will be intervening any time soon even though the responsibility of addressing this issue now falls solely and exclusively on his shoulders.
The Prime Minister’s continuing inaction and the action being demanded by the members of the legal profession will continue to stretch the crisis in different directions, while the Chief Justice is not going anywhere. The reality, however, is that all the senior counsel and all the junior counsel cannot put the broken pieces of this calamity back together again.
In addressing the Magistrate’s Court last Thursday, the Director of Public Prosecutions asked whether or not the former chief magistrate Marcia Ayers-Caesar had resigned when he said: “The DPP does not know for a fact that Mrs Ayers-Caesar resigned. This is a serious matter and needs serious consideration and your worship should trod (sic) with caution.” (Guardian, Friday June 2, 2017, page A5).
There was ruction inside and outside the courts as accused people were told by acting Chief Magistrate Maria Busby-Earle Caddle that all of their matters would have to be restarted de novo. This is going to have further repercussions now that the DPP has adopted a particular stance before the courts. On what basis has the acting Chief Magistrate made her determination that all of the matters must be started de novo and from where does the jurisdiction to make such a determination derive? These are matters that are likely to attract further attention.
Concurrently, in a letter to the President of LATT last Wednesday, signed by Administrative Secretary to the Chief Justice, Sherlanne Pierre, the Chief Justice and the JLSC sought to distance themselves from the appointment of judges by saying that “The JLSC does not appoint Supreme Court judges…The President appoints judges pursuant to section 104 of the Constitution.”
This was a most surprising assertion as it sought to suggest that the President had a choice to refuse the advice of the JLSC which he does not. This is nothing more than an attempt to shirk a sacred constitutional responsibility that has been imposed on the Chief Justice and the JLSC.
What this letter from the administrative secretary to the Chief Justice is saying is that the powers that everyone thought the President had to comply with the advice of the JLSC in the appointment of judges really turns out to be a power that we did not know that the President had to refuse the advice of the JLSC which is chaired by the Chief Justice. In other words, powers we thought the President did not have turns out to be powers that the JLSC thinks that he has.
With the Magistracy thrown into chaos, the Chief Justice and the JLSC on the defensive and the executive executing a “Great Wall of China” separation from anything to do with this fiasco, it is only natural that this crisis will deepen.
With the LATT expressing its loss of confidence in the handwritten substitute for the chairman of the Public Service Commission, it is possible that pressure may be exercised in that quarter for her removal seeing that she is an ex-officio member of the JLSC who is now caught up in this web of controversy that is beginning to spread into all arms of the public sector with every passing day of inaction.
If there is a belief that this is somehow going to wither away when the courts go on recess for July and August and resume in September by using the methodology of the nine-day wonder, the reality is that this only keeps growing every week and we have gone way past nine days.
The effect of the recent Privy Council decision in the case of Attorney General vs Dumas has created the opportunity for any citizen to challenge any decision by any public official or organisation in respect of public affairs. This decision handed down on May 8 instant has since seen a plethora of legal activity against the State that has led the Prime Minister to conclude that the UNC is using the judicial process as their “playground”.
In the current scheme of things regarding the Judiciary and the administration of justice, that is an unfortunate comment.
One excerpt from the Dumas decision that has cleared the way for a variety of legal actions against the State reads as follows:
“1. This appeal raises an important question about the jurisdiction of the High Court to hear an application by a citizen for the court to interpret a provision of the Constitution.
2. The respondent, Mr Dumas, as an engaged citizen with an interest in the good governance of the Republic, seeks a determination of the meaning of the phrase ‘qualified and experienced’ in section 122(3) of the Constitution and declarations that the nomination and appointment of two persons to the Police Service Commission under that section of the Constitution were invalid because, he asserts, the nominees lacked the specified qualifications and experience. Mr Dumas claims no personal interest in the appointments. He asserts a right as a citizen to seek the assistance of the courts in the upholding of the Constitution.
3. In this appeal the board is not concerned with the merits of Mr Dumas’ challenge and expresses no view on the interpretation of the relevant provision of the Constitution. Its only concern is the question of the jurisdiction of the High Court.”
This particular issue of a citizen seeking to approach the High Court, not to seek redress but to seek “the assistance of the courts in upholding the Constitution”, is what was central to the Dumas case.
The fact that Dumas was successful is a reality that all governments of T&T, present and future, have to accept and there will now be no end of litigation coming their way for anything that they wish to do. Once all of their decisions are properly made and there is nothing questionable about their dealings, then all should be fine.
The Dumas case cited here was about the jurisdiction of the High Court on issues of procedure to hear such challenges against the Office of the President (in this case) and the Parliament (latterly invoked in this case) from an ordinary citizen.
With the procedural matter out of the way, his substantive case can now begin some three years later after it was filed in 2014. In the aftermath of May 8 there has been a slew of legal matters filed in the High Court by Devant Maharaj that has attracted the ire of the Prime Minister.
It is most unfortunate that Devant Maharaj’s challenges to the State in the High Court could not be seen in the same light as Reggie Dumas’ challenge to the State in the High Court. They are both challenging the State—whether it is the property tax, the appointment of judges by the President or the presidential interpretation of the qualifications of people he nominated to the Police Service Commission.
With political attacks now crossing into the judicial arena, it is becoming more and more evident that T&T should hold on to the Judicial Committee of the Privy Council for a while longer. Justice Frank Seepersad had the misfortune of social media attacks against his judicial worthiness because two interim orders that he made were overturned by the Court of Appeal.
Some of the media reporting made reference to a newspaper article in 2013 that suggested that he was under consideration for appointment to the office of President. However, in the interest of balance, it should also be pointed out that then leader of the opposition Dr Keith Rowley had announced that the PNM’s choice for the presidency in 2013 was sitting CCJ judge Rolston Nelson. In 1997 Justice Anthony Lucky was actually nominated by the PNM as its presidential candidate against ANR Robinson.
If the society is crossing judicial boundaries in this manner to suggest that certain judges may not be as politically neutral as some would like, then we might as well hold on to the Privy Council for the foreseeable future.
Writing in his Sunday Express column on February 13, 2005, my colleague Prof Selwyn Ryan said:
“It is also clear that there continues to be a great deal of cronyism and jockeying for position within the judiciary and that the brethren are as divided along ethnic and personal lines as they have been in the past.”
With social media attacking the judiciary and the Prime Minister saying that he will stay out of the confusion involving the Chief Justice, while criticizing others who seek to use the High Court to have their public interest matters resolved, the Privy Council needs to stay for now.
Last Tuesday, the Guardian reproduced some of the questions that were asked of prospective judges for our High Court.
While one can note that there is a Common Entrance policy for all judges, what was most surprising was that the examination itself had some Common Entrance questions that would be asked of 11-year-old students, rather than applicants for the High Court bench.
This information came from a Freedom of Information request that had been made by Senator Gerald Ramdeen back on April 7 when he raised questions about the criteria being used by the Judicial and Legal Service Commission (JLSC) to recommend appointments for the High Court bench to the President.
Ramdeen was roundly criticised at the time for daring to question the judicial establishment about the processes that it employed in making these appointments.
Indeed, on the day of the swearing-in ceremonies for Marcia Ayers-Caesar, Kevin Ramcharan and Avason Quinlan-Williams on April 12 instant, Chief Justice Ivor Archie said:
“It is important as well that the public knows that anyone who is appointed has been through one of the most rigorous selection processes you can find anywhere in the region or Commonwealth.”
Since that time, the public has found out a lot more about “one of the most rigorous selection processes you can find anywhere in the region or Commonwealth” and quite frankly, it is disturbing.
Instead of questions about legal philosophy involving matters such as the views of Montesquieu on the separation of powers, potential judges were being asked questions about the cost of a bat and ball that cost $1.10 together where the bat costs $1.00 more than the ball, so how much does the ball cost? Really?
In a twenty-first century democracy, potential judges, according to last Tuesday’s Guardian, also had to be “reminded of the need to use proper language, correct spelling, standard grammar and orderly, legible and neat presentation” of their work. That is a responsibility that should come naturally with professionalism and nobody at that level should be reminded about that. Indeed, it should not be stated and anyone who presents such work should have marks deducted for such sloppiness.
Such a caution ought to have been given to whoever prepared the ballot paper for the Law Association on June 1 instant.
The entire examination should be restructured to permit applicants to be tested on (i) principles of legal philosophy (to test for knowledge of the major principles in the law), (ii) the criminal and civil codes (to test for knowledge of the application of the law), (iii) judicial-opinion writing (to test for the ability to write effective judgments after being given potential decided outcomes that require a judgment to be written), and (iv) case-load management (to test the managerial ability of potential judges to manage their workloads in the interest of efficiency and justice). The examination could be held over two days to separate (i) and (ii) from (iii) and (iv).
There should be no need to test the numeracy skills of people who are holding senior positions as diverse as the chief magistrate or a registrar in the Family Division.
If there is a belief that numeracy skills are deficient at that level and require testing, then we have a bigger problem than we can imagine.
The common entrance policy for admission to the High Court can be improved to remove the Common Entrance approach to examining potential judges.
Based on what was revealed by the Guardian last Tuesday, there is no way that this examination process can be described as part of “one of the most rigorous selection processes you can find anywhere in the region or Commonwealth”.
While the Law Association announced last Monday the creation of a committee that its president Douglas Mendes said will try “to let the public know that it is assessing the system of appointments and not about the events of the last six weeks”, there can be no doubt that the committee has come about because of the events of the last six weeks.
That committee needs to ensure that its work product will not be viewed as a public relations exercise that is unlikely to address whatever ills exist in the administration of justice if their recommendations will be shelved with a polite thank you note from the relevant authorities.
That committee must understand that there is no consensus on the issue of changing from the CCJ to the Privy Council, that there is no desire by judicial authorities to appear before parliamentary committees, and that judges are tested on the most elementary matters in the name of academic rigour.
They must also address the culture of secrecy in the administration of justice and recognise that has to change towards greater transparency and accountability. Legislation cannot make that happen as Senator Ramdeen found out as he had to go to court to force requested information out of the Judiciary. Freedom of information and freedom of the press have exposed the travesty of the Common Entrance examination for the Common Entrance policy for the Judiciary.
Last Thursday the Guardian highlighted the fact that Chief Justice Ivor Archie admitted to an error made in a press release from the Judiciary about the decision to restart some 53 cases in the Magistrate’s Court that were previously part-heard before Marcia Ayers-Caesar.
According to the story by Derek Achong under the headline CJ admits to error about Archie’s response, through counsel Ian Roach, to Senior Counsel Anand Ramlogan’s pre-action protocol letter, it read as follows:
“It is unfortunate that you have construed the media release (which was regrettably not worded as it should have been) in the way that you have.”
Here, Archie either admitted that the press release that was issued under the seal of the Judiciary on May 25 about the May 24 meeting of stakeholders to discuss the way forward with the Ayers-Caesar part-heard matters was either an admission of his personal error for faulty vetting of the release or administrative incompetence by his staff for sending out such a release without vetting by him.
Whichever it is, it is a crucial error that has now raised the stakes in the issue of who gave instructions to the new acting Chief Magistrate Maria Busby Earle-Caddle to discontinue and restart “de novo” the proceedings in some 53 part-heard matters that were before Ayers-Caesar and are now before her.
The Director of Public Prosecutions, Roger Gaspard, has asked the acting Chief Magistrate to tread with caution in proceeding along this route.
With the statement by the Chief Justice that the incorrect press release could not constitute the basis for Ramlogan to construct a case for his client against the Judicial and Legal and Service Commission, one is left to wonder from where did the acting Chief Magistrate get her “de novo” instructions, especially since she said she “had instructions” to restart the matters.
There is another unanswered question that was posed by the DPP that relates to the actual status of Marcia Ayers-Caesar as far as the public record is concerned. Has she been permitted to access all of her cumulative leave or has she actually resigned? The general public has a right to know, quite apart from the DPP and the accused people who were before Ayers-Caesar on part-heard matters.
Because the JLSC is not accountable to Parliament to appear before the relevant Joint Select Committee to answer for their stewardship, the public will have to wait on the annual report by the Judiciary which must be laid in Parliament every year in accordance with section 66 C (2) of the Constitution which reads as follows:
“The Judicial and Legal Service Commission shall submit to the President before 1st October, in each year, commencing in the year 2000, a report on the exercise of its functions and powers in the previous year, describing the procedures followed and any criteria adopted by it in connection therewith, and the President shall cause the report to be laid within sixty days thereafter in each House.”
This matter will not go away as the timelines are clear. The report must be given to the President by October 1 and the President is required by law to cause the report to be laid in Parliament by November 30.
If the Chief Justice is admitting errors from now with the vetting process for simple press releases, he had better ensure that the vetting process for the annual report is error-free because there are many potential critics and litigants looking on from the other side of the “Great Wall of China.”
The Sunday Guardian has published, over the last two Sundays, the actual correspondence related to the Marcia Ayers-Caesar side of the story. This is going to be an epic battle that will put into the shade the Justice Crane controversy that involved the JLSC some 27 years ago.
At the same time, there is also a parallel matter involving the JLSC about its composition which is also being contested and has reached the appellate stage, while the Ayers-Caesar matter is yet to get underway in the High Court.
For the time being, the Chief Justice does not have to concern himself with any proceedings for his potential removal as the Prime Minister has made it clear that he does not intend to pursue such action. That means that the energies of the Chief Justice and the JLSC can now be turned to the legal challenges being mounted against them as by-products of the Marcia Ayers-Caesar affair.
One response has been provided to Anand Ramlogan in his matter on the jurisdiction to start cases “de novo”, while the other still has time to run for a response in the matter being handled by Ramesh Lawrence Maharaj on behalf of Marcia Ayers-Caesar.
The effect of the Dumas judgment by the Privy Council on May 8 instant has now opened the doorway for legal challenges to all authorities from the President down the line. This will become the new normal and public authorities, starting with the Prime Minister, better start getting accustomed to it because this will not be a “playground”.
For the third time in 22 months, Prime Minister Rowley has reshuffled his Cabinet. His first reshuffle came on March 17, 2016 (some six months after taking office), when he dismissed Marlene McDonald as Minister of Housing following persistent advocacy by the civil society group Fixin TNT who had called for her removal because of certain allegations that were put into the public domain by them and picked up by some media houses.
On that occasion, Prime Minister Rowley decided to reassign Randall Mitchell from being the Minister of Public Administration to become Minister of Housing and Urban Development, thereby replacing McDonald. He also decided then to reassign Maxie Cuffie from just being Minister of Communications to become Minister of Public Administration and Communications. In completing that reshuffle, he assigned to Stuart Young the portfolio of Minister of State in the Office of the Prime Minister in addition to his other portfolio as Minister in the Ministry of the Attorney General.
Having made what was a painful decision for him to dismiss McDonald, he used the opportunity to do some other reshuffling. However, by October 31, 2016, he undertook a more comprehensive reshuffle by dismissing two cabinet ministers, Ancil Antoine (Public Utilities) and Nicole Olivierre (Energy), and brought Kazim Hosein (Local Government) and Rohan Sinanan (Works and Transport) into the Cabinet, while moving Franklyn Khan to Energy and Fitzgerald Hinds to Public Utilities. He also elevated Stuart Young from Minister of State in the Office of the Prime Minister to Minister in the Office of the Prime Minister, while retaining his other position of Minister in the Ministry of Legal Affairs. In order to make way for Kazim Hosein, he had the senatorial appointment of Sarah Budu revoked.
That was eight months ago. Now we have yet another reshuffle in which the main attraction is the return of Marlene Mc Donald to the Cabinet as Minister of Public Utilities replacing Fitzgerald Hinds who has been demoted to the position of Minister in the Ministry of the Attorney General and Legal Affairs, while retaining his Cabinet rank.
Another surprising announcement was the appointment of Nicole Olivierre as Parliamentary Secretary in the Ministry of Energy. Having been dismissed as Energy Minister some eight months ago, she accepted the offer to come back as a Parliamentary Secretary in the Ministry that she once headed. It is true that Minister Franklyn Khan recently returned to office after a period of illness and he may require a parliamentary secretary to assist him with his duties.
What was strange about the press release is that it described Nicole Olivierre in the following way:
“Ms Olivierre is a respected professional in the energy industry and holds a Bachelor of Science in Analytical Chemistry and Computer Science as well as a Master of Philosophy in Chemistry.”
This sentence in the press release begs the question of why was she dismissed from the post of minister in the first place and now brought back as a parliamentary secretary.
In increasing the size of his government, Prime Minister Rowley also arranged for the senatorial appointment of Ayanna Lewis to be revoked and her replacement is now Allyson West, who will also be appointed Minister in the Ministry of Finance.
In the two cases of Hinds and West, their duties will be assigned to them by their respective line ministers, namely Faris Al-Rawi and Colm Imbert. One of the narratives that Prime Minister Rowley used when he was in opposition was a complaint about the size of the government under the People’s Partnership. He is slowly increasing the size of his government since he took office as far as new ministerial (Hosein, Sinanan, Mc Donald and West) and parliamentary secretary appointments (Jennings-Smith and Olivierre) are concerned.
The Ministry of Finance has operated since the beginning of this administration without a junior minister to assist Colm Imbert. As he faces what will be this Government’s toughest budget in September, he will need assistance which he now has.
Perhaps, there are two ministers who can count their lucky stars that they did not get the axe—and they are Sports Minister Darryl Smith and Tourism Minister Shamfa Cudjoe whose controversial excesses with the public purse were headline news recently. It is obvious that all is forgiven and Prime Minister Rowley saw no need to deliver any punitive messages to either of them. The misadventures of Smith and Cudjoe with the public purse and their subsequent responses to their respective controversies were embarrassing to the Government.
The return of Marlene McDonald also has another dimension to it. She was the chief whip when the PNM were in opposition during the 2010-2015 term of the People’s Partnership and she brings much expertise to the front bench of the Government which is sorely missing.
Prime Minister Rowley has navigated around the Integrity Commission in returning McDonald to the Cabinet. There is still something that is being investigated, while other things have been cleared. Some in the Opposition may be taking note of this approach.
“Had I known that the swearing-in would become an issue—if I had a crystal ball to look into it and ask if I appointed her, the swearing-in would have resulted in this—clearly I wouldn’t have.” These were the words of Prime Minister Dr Keith Rowley at a press conference last Monday to discuss his recommendations to the President to first appoint and secondly to revoke the appointment of Marlene McDonald as Minister of Public Utilities.
It was a dramatic turn of events that seemed to have been driven by one guest whom McDonald brought into the room for the swearing-in ceremony that was supposed to mark her triumphant return to the Cabinet. It was because of that guest that the Prime Minister said that he removed McDonald from his Cabinet.
According to Gail Alexander writing in last Monday’s Guardian, Rowley, she said, “wouldn’t be taking issue with POS South’s selection of her as MP. On her deputy leadership, he said the PNM deals with its deputies at convention and noted that deputies assist the leader.”
So is it that it is not okay for Marlene McDonald to be in the Cabinet because of her guest at the swearing-in ceremony, but it is okay for her to continue to serve the PNM as a deputy political leader for legislative matters? In other words, is she desirable or undesirable ?
The alarm that has been created around McDonald’s association with her guest was so diabolical that it cost McDonald her job as Minister of Public Utilities almost as soon as she got it. The Prime Minister obviously had not been briefed about the relationship which was so troubling to him, because he only reacted afterwards when he had, presumably, been briefed.
There seemed to have been no vetting before recommending the appointment as the only concern that he had on his radar was whether anything may come up at a future date regarding the incomplete Integrity Commission probe involving McDonald. He factored in a possible dismissal at a future date as he told the post-Cabinet media briefing two Thursdays ago that he would act should there be anything adverse against her as regards that matter.
In many respects the Prime Minister was blindsided. What would have happened if her guest had not been permitted to go into the President’s Office for the swearing-in ceremony? McDonald would have been Minister of Public Utilities today and would still have been associated with her guest.
This episode turns on the issue of security vetting and background checks because it is far too simplistic to say that because of what happened at the swearing-in ceremony that McDonald lost her job just like that.
She may have had challenges in her screening exercises to become a candidate for the PNM in 2015 and she may have had further challenges when the pressure group Fixin T&T dredged up those same issues that were used at her candidate screening in 2015 to put pressure on the Prime Minister in 2016 to remove her from the Cabinet.
There was nothing new where those matters were concerned. What has been placed before the national community now is something completely different. It has to do with personal associations and not personal actions.
The Prime Minister was very specific that she lost her job because of her association with her guest. Somebody failed the Prime Minister in not briefing him about her association with her guest as he confessed to not having “a crystal ball” to see who would be coming to the swearing-in ceremony. So I ask the question again—if the uninvited guest had been kept at bay in the waiting area, would Marlene McDonald still be the Minister of Public Utilities of T&T today?
The answer is probably yes, because the guest would have been out of sight and therefore out of the Prime Minister’s mind. Will the Prime Minister take action at the next annual convention of the PNM to remove McDonald as a deputy political leader or will he retain her services?
The extent to which the Government was blindsided by this episode was revealed in the Senate last Thursday when opposition senator Wade Mark asked Minister of National Security Edmund Dillon about the breach of security at President’s House. His response was that he could not say whether there was a breach of security because both the President’s Aide-de-camp and the Commissioner of Police were investigating the matter. In other words, after six days the Government was still officially clueless about what happened, but yet McDonald lost her job because of the presence of one of her guests.
As chairman of the National Security Council, the Prime Minister has access to classified intelligence information that others will not have. Obviously none of that information was used by him or was made available to him to vet the re-appointment of Marlene McDonald to the Cabinet.
This lapse is far more serious than we think.
The PNM almost forgot to celebrate the second anniversary of their 2015 election victory last Thursday. So much was promised to so many and so little has been delivered. The current Government has spent the last two years looking backwards to blame the People’s Partnership for every little mishap that has befallen them and neglected to look forward to offer a brighter future for the nation.
The constant complaining about what happened in the past unfortunately gave the impression that this Government is incapable of any problem-solving skills and only knows how to blame its predecessor for its inability to show leadership on the pressing problems of our times.
The worst signals possible from the Government on the day of their two-year anniversary in office was the absence of their leader overseas and the cancellation of the post-Cabinet media briefing. One would have thought that that would have been an occasion to speak with pride about the great victory of 2015 and all of the accomplishments to date.
When the People’s Partnership was in power, they used to hold an annual public rally to celebrate each year of their 2010 victory. What a contrast.
Sadly, the legislative agenda that has been published on the Parliament web site by the Government is woefully short of accomplishment for the 205-2017 period in relation to what the Government said it would have completed by now (the end of the Second Session of this Parliament).
The manifesto is replete with unfulfilled promises waiting for delivery to the population. When will the delivery start? There has been a lot of studying about the architecture of crime and a lot of talk about doing something about crime but unfortunately, the population is still waiting for action on the crime front.
There is an overall lack of performance that has not gone unnoticed. In last Thursday’s Guardian, an opinion poll done by HHB and Associates led by Louis Bertrand showed that people believe that the country is going in the wrong direction. Crime and violence was ranked as the single most pressing problem facing the society, yet Prime Minister Rowley seems to have utmost confidence in his team of Minister Dillon, junior minister Moses and Parliamentary Secretary Jennings-Smith.
He needs to revamp this situation urgently if he is to inspire any confidence in the population. He could find himself like former prime minister Patrick Manning who was wedded to the late Martin Joseph to deal with crime. Nice person that he was, his calling was not in the Ministry of National Security. Like Manning, Rowley may come to suffer from what, in public administration, is called “trapped administrator syndrome” which is where leaders remain wedded to non-performers.
One of the issues that the PNM criticized the People’s Partnership government about was the subject of governance. If there were challenges under the previous administration, this one has certainly put them in the shade between the Trinidad-Tobago ferry fiasco, the Port Authority Boards, past and present, fiascoes, the Le Hunte appointment fiasco, the Marlene Mc Donald fiasco, the failure to intervene in the Chief Justice fiasco, the Defence Force shooting range inquiry fiasco, and the list goes on.
At some point there has to be some leadership to take hold of these issues and rectify them. Instead of only being subjected to a full frontal view of PNM versus PNM on the Parliament Channel between the former chairman of the Port Authority Board and a former board member about the poor governance of the Port, the country should have been able to have some sense that the problems being faced at the Port are likely to have some resolution soon.
The biggest challenge facing this Government is whether or not it will make a decision about divesting state enterprises to private sector entities thereby reducing the burden on the Treasury for subsidies and transfers. Having signed a Memorandum of Understanding with the Joint Trade Union Movement on August 27, 2015, the Government has found itself a prisoner of the unions and unable to take policy decisions based on a free market approach.
The unions know that the Government has free market economy pressures from the private sector, especially amongst its financiers, so that it is now torn between the two. That tug-of-war is literally ripping the Government apart as both sides have their supporters inside the Cabinet.
The unions have struck back by latching onto a foolish comment made by a prominent businessman on an international documentary about this country and are now seeking to publish a list of businesses that should be boycotted and another list that should be supported. In fighting th eir class warfare, the unions are now threatening to use racial profiling as a means of fighting that class warfare.
The Leader of the Opposition, Kamla Persad-Bissessar, had a field day on the second anniversary of the PNM’s victory to tell the population that she had warned them that the PNM had no plan. It did not work two years ago, but, after two years, we are still waiting for the plan.