Wednesday, February 21, 2018

Another emergency case


Mark Fraser

 Upon the application of the Prime Minister’s emergency room procedures two ministers were gone in days. But it does not appear that bombshell allegations of wrongdoing within the State’s engine rooms of justice have reached the political ER. In the words of the AG on the alleged leaking of the flying squad reports, this could be treason and subversion of the State.

If Asha Javeed’s Sunday Express report on a letter from then Solicitor General Eleanor Donaldson-Honeywell to the PM is true it’s the sequel to Section 34. If some is true, the public interest is already impaired. If none is true, then a forensic review and not the AG must say so. This is the system of justice accused of chicanery, subterfuge, criminal conduct, and high-heeled corruption. Where is the PM on this?

Following the resignation of Chandresh Sharma as a minister last month, the PM peddled the talk of a new era in the management of her political clansmen. Now she is into a “National Conversation” but this is what people want to talk about. If Javeed’s report is correct, since August 30, 2013 the PM knew of the former Solicitor General’s allegations, including one that says, “since mid-2010 a conflict of interest exists with certain key office holders” in the State’s legal bureaucracy, increasingly taking action to support unethical business for direct and/or indirect financial gain.

 Did the PM really just hand the letter to the AG? Nothing short of a sweeping independent investigation should have resulted, but there’s no evidence of that. So what happened? In his response to the Sunday Express the AG appears to have “handled” the allegations. Did that cause the Solicitor General to quit her post three months later? This is where the “national conversation” must start before signs of a Section 34 sequel appear. 

The February 5, 2014 decision of Master Patricia Sobion-Awai in the Jamal Sambury case and the Sunday Express reports on the decision preceded the new report on allegations of wrongdoing within the Ministry of the Attorney General. While Master Sobion-Awai makes no such finding, the “dishonest” conduct in the Sambury claim against the State was actually discovered by the Ministry of the Attorney General. Coincidentally, Donaldson-Honeywell’s letter requested an investigation into the existence for some time of an unethical business venture engaged in by attorneys, purportedly on behalf of prisoners alleged to have been assaulted by prison officers. There is absolutely no evidence that the Sambury decision and Donaldson-Honeywell’s letter are related, but both suggest the need for a thorough independent investigation within the Ministry of the Attorney General. That does not appear to be underway.  

In Sambury’s case, he alleged an assault and battery by police officers at a holding cell at the Princes Town Magistrate’s Court. In the proceedings for compensation the State admitted the assault and battery but denied all the injuries claimed. By consent, the parties agreed that the State was liable but the extent of the injuries and compensation were fixed for assessment before Master Sobion-Awai. Before the assessment, the State filed applications to strike out Sambury’s statement of case and his witness statement. Sambury filed no affidavit in response to the two filed by the State to support its applications. 

Master Sobion-Awai found that by lifting significant portions of court filings from previous litigation by prisoners making claims against the State, Sambury sought to mislead the court as to his injuries and the actual circumstances of his assault and battery. The Master also found the conduct of litigation by Sambury to be dishonest and an abuse of the court, but did not strike out the assessment of injuries and compensation since she found that he had in fact suffered injuries. That assessment is still to be completed. Sambury was ordered to pay the State $15,000 in legal costs and Master Sobion-Awai opined that this was a matter for concern. The Master called for “an investigation of some sort to determine where responsibility lies and what action can be taken to prevent future abuses of this type”. 

Master Sobion-Awai’s findings were simple as the AG has said, but were they explicable, and who is doing the explaining?  A more reasonable assessment of the Master’s findings is that they are far-reaching and potentially damaging to the system of justice, an assessment that goes along with Donaldson-Honeywell’s letter and suggests that all is not well in the system of justice.  

At this stage it is not clear where responsibility for the dishonest conduct, “lifting”, and abuse of the court rests, but that should be a starting point. Did Sambury prepare his own witness statement and case or was this done by lawyers? If this was done by lawyers, then the Law Association and the judiciary are already said to be following the matter. What has the Law Association done in the interim to protect the interests of the legal profession and the public, having regard to the findings of the Master? What is the level of urgency given to this by the Law Association? 

Surely, as the office that pointed out the dishonest conduct to the court, the Ministry of the Attorney General would be pressing hard to ensure that it discharges what it describes as its duty as independent guardian of the public interest to ensure that the rights of all citizens are protected. Dishonesty against the coffers of the State must rank high among the interests of citizens demanding a right to protection and it may be that there’s much ado about nothing. 

Section 34 taught us that a single newspaper article can shake the Parliament and provoke unprecedented executive action. The Donaldson-Honeywell allegations, the Sambury case, and all settlements reached by the Ministry of the Attorney General, including the payment of legal fees and compensation must be thoroughly investigated. This requires ER procedures: an immediate, independent, and deeper investigation. And for starters, the AG should not be investigating his own ministry.

* Clarence Rambharat is a lawyer and a university lecturer