Costly battle

Of course, it is easy to argue that public confidence in the administration of justice would have been better served by immediate submission to criminal prosecution, as Sharma’s vindication would have alleviated the fears and concerns of a weary population. This ignores the fact that the constitution provides a specific and special procedure for the impeachment and removal of a Chief Justice, and hence, Sharma, perhaps, felt duty-bound to defend what he perceived to be a political assault upon the office of Chief Justice.

It would have been a travesty of justice to allow Sharma to retire without “facing the music.” This would have led to the inescapable conclusion that he had manipulated the justice system, over which he had presided, by a series of delaying tactics and succeeded in suffocating the claims of misconduct without any trial.

Chief Magistrate Sherman Mc Nicolls is the author of his own present misfortunes. It is either that he deliberately misled the Government into fighting tooth and nail for the right to criminally prosecute Sharma, or either the Government was itself guilty of misusing the judicial process to keep Sharma out of office. How else can we explain his sudden decision not to testify in the long-awaited criminal trial? If he never intended to testify against Sharma in a criminal trial, then why did he give statements to the police in the course of their criminal investigation?

Why did he not write the Director of Public Prosecution (DPP) to inform him that he did not wish to testify in a criminal trial, so that the unseemly sight of heavily-armed police officers rummaging through the CJ’s desk and trying to arrest him at his home could be avoided? An expensive, unnecessary protracted legal battle was waged at taxpayers and Sharma’s expense for no good reason. Mr Mc Nicolls’ inexplicable silence is, without a doubt, the main cause of this.

Already, fears are being expressed that Mc Nicolls would “try the Sharma dance” and drag things out in the courts, until he comfortably retires in June and places himself beyond the reach of the Judicial and Legal Services Committee (JLSC). This could simply reinforce the public’s perception that justice in this country is a case of “different strokes for different folks” and further undermine confidence in the strength and independence of the judiciary.

It cannot be right that such high office-holders be allowed to retire with their full benefits in the face of serous allegation of misconduct that have not been tried. This means that the unresolved allegations against Sharma, regarding attempted interference in the Vijay Narinesingh murder trial, should be heard and determined. It also means that Mc Nicolls should face a disciplinary tribunal. To this end, the courts should move swiftly to deal with both matters. The JLSC can appeal the decision of Justice Jamadar to dismiss some of the disciplinary charges preferred against Mc Nicolls, on the ground that this was a matter for the disciplinary tribunal, and not the High Court.

Mc Nicolls can appeal the decision to clear the way for him to be tried for two disciplinary offences. To Justice Jamadar’s credit, Mc Nicolls’ judicial review application was dealt with expeditiously. In the event of an appeal, one would expect the Court of Appeal to give this matter the priority it deserves.

I am not certain that I share the view that once a public officer retires, he is immune from disciplinary action that was already in train. Barring the anti-climactic effect, it limits the range of possible penalties that could be inflicted in the event wrongdoing is proved. It would seem to me, however, that appropriate action could, nevertheless, be taken to preserve and vindicate the rule of law.

Footnote: In my column on the appointment of Chief Justice Archie, I erroneously stated that Kangaloo, JA, was a member of the tribunal that heard the equal opportunities appeal in which Justice Archie delivered the lead judgment. Justice Kangaloo was not, in fact, a member of the panel that heard this appeal, and the error is regretted.  

By Anand Ramlogan 2008-02-10