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Sunday, July 23, 2017

In the aftermath of the talks between the Prime Minister and the Leader of the Opposition, what has emerged is that the Government is having consultations for a legislative fix to the problems associated with the fallout from the Marcia Ayers-Caesar fiasco.

The specific focus is its impact on the status of some 53 part-heard matters in the Magistrates’ Court that were pending when she was appointed a judge on April 12 instant.

On what basis is Parliament going to attempt to legislatively fix the mess that has been created in the judicial process for all of those people involved in the 53 part-heard cases? According to Gail Alexander reporting in the Guardian on Friday last:

“Despite Opposition objections, Attorney General Faris Al-Rawi hasn’t thrown out the Summary Courts and Preliminary Inquiries legislation as possible solutions to matters such as the 53 incomplete cases from former chief magistrate Marcia Ayers-Caesar’s tenure. This due to the fact that amendments to the legislation may only require Government’s (simple majority) votes for passage in Parliament and no Opposition support.”

With the Attorney General pressing on with a legislative fix minus the Opposition and the Prime Minister being cautioned against a legislative cure by the Leader of the Opposition, there is concern that Parliament may make the situation worse than it already is.

That is because the view held by the Attorney General is one in which he thinks that only a simple majority is needed to amend the Summary Courts and Preliminary Inquiries legislation.

As laws that were in force at the commencement of our Constitution on August 1, 1976, they are existing laws.

Section 6 of our Constitution deals with existing laws and the fact that nothing in Sections 4 and 5 of our Constitution (the human rights sections) can invalidate any existing law.

Where the extreme caution is required is where Section 6(2) speaks about cases where “…an enactment repeals and re-enacts with modifications an existing law and is held to derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right then, subject to sections 13 and 54, the provisions of the existing law shall be substituted….”

Section 13 relates to three-fifths majority requirements and Section 54 relates to amendment of the Constitution which may involve higher thresholds for special majorities that could be either two-thirds or three-quarters.

This is where Parliament has to be careful. Is the legislative fix specific to these 53 part-heard matters or is it a more general fix that will now be applicable in all cases going forward? No one knows, but the Government is walking a tight rope on this one now that it has finally decided to scale the so-called “Great Wall of China” to start exercising powers that it has had all along.

Surely the Government must have understood that the separation of powers between the branches of government involves both the separation and the sharing of powers.

The general philosophy of the separation of powers as enunciated by Montesquieu envisaged such, far less the specific provisions of our Constitution.

The real action that needs to take place is to invoke Section 137 of the Constitution so that an inquiry can be held by the appropriate tribunal while someone else acts as Chief Justice. Without doing this, there is going to be difficulty recruiting two new people to sit on the JLSC following the delayed announcement of the resignations of Messrs Hamel-Smith and Stollmeyer. If the Chief Justice is cleared we can all move on, if not we know what we have to do as a nation.

Quite frankly, the Government has waited too long to get to this point. More decisive action was required at an earlier stage.

The Attorney General is consulting the DPP and other stakeholders, but do either of them (AG and DPP) know whether Marcia Ayers-Caesar actually resigned her position as Chief Magistrate?

The intended lawsuit against the Chief Justice, the JLSC and the President has now been filed by Ayers-Caesar’s attorney, Ramesh Lawrence Maharaj. That lawsuit has come up against sealed JLSC documents.

The Government’s intended legislation is going to try to walk through that thicket of thorns as if nothing ever happened.

The entire judicial fiasco that has overtaken this country all started with a simple request by opposition Senator Gerald Ramdeen last April 7 for the Chief Justice and members of the JLSC to disclose the criteria used for the appointment of High Court judges. From that very simple request emerged a crisis of epic proportions that toppled the virtual Humpty Dumpty from the wall on which it sat and it crashed into pieces.

The Government was afraid to put the pieces together, the Judiciary is hamstrung to do so, the President is part of the problem with inefficient communication coming out of his office, and the Prime Minister is a latecomer to the wreckage.

What all are failing to realise is that no matter what they do, they cannot put Humpty Dumpty back together again without invoking Section 137.


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