Saturday, February 24, 2018

US master class skipped by T&T judges

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Mark Fraser

It took the US Supreme Court five weeks to decide against hearing Steve Ferguson’s plea to review a lower court ruling against him. It took three months for that decision to be reported here, where Mr Ferguson is used to having his way in the T&T courts.

Attorney General Anand Ramlogan promptly issued a press release, celebrating a rare victory over the two-headed nemesis—“Ish and Steve”. As Newsday reported, it took the nine Washington “brethren” plus four appellate and circuit court judges 14 months to repudiate arguments by the Ferguson lawyers.

In sum, 13 US judges closed a T&T-related “matter” in 14 months. That outcome impressed unlearned me as a master class in judicial process, which should inspire and instruct T&T’s own gowned grandees.

This demonstration of the American way was a free show. For a local judicial show-and-tell, however, taxpayers will pay when, on the order of Chief Justice Ivor Archie, courts and related offices will be shuttered for two days. Judges, magistrates, masters, and other staff under his command have been summoned to a Hilton workshop.

What the T&T Judicial Education Institute puts on next week will likely not draw on any “learning” from the USA, such as was readily available on TV last week. In Boston and elsewhere Stateside, the Americans staged their own spectacular, starring “Law Enforcement” as an abstraction made flesh: in short days, bad guys were killed or held.

Courtroom sequels are awaited, but the American way of getting things done engaged the world like a Hollywood blockbuster.

Still, on the evidence, T&T law enforcers—police, prosecutors, magistrates, judges—seem set to remain uninfluenced.

For much of the decade that they have been billed to appear there, the Ish and Steve tag team have resisted the challenge of the American courtroom arena. After 11 years, the Piarco Airport project prosecutions in T&T courts have hardly proceeded past what Americans call ‘first base”.

The US courts, holding multiple indictments against Ish and Steve, wait in vain for the T&T judges to hand over the wanted men. Local judges have upheld the nationalistic position that T&T courts should have first shot at trying those alleged to have violated T&T law.

The red, white and black standard was memorably raised in late 2011 by Justice Ronnie Boodoosingh, overruling the Attorney General’s decision to extradite Ish and Steve. Patriotic fellow feeling extended toward even sympathy for the long-suffering team of two:

“The local proceedings—over hundreds of court days,” said Justice Boodoosingh, “would have impacted on their social, domestic and business lives”. To suddenly abandon these proceedings…does suggest unfairness and oppression.”

Justice Boodoosingh cited earlier obiter words by Justice Narine, voicing even more sympathy for the potential US plight of Ish and Steve. Narine J foresaw and feared “a new raft of suffering in America” the probable denial of bail…much more severe sentences.”

He concluded: “lt is inhumane and cruel to expose them to this after such time and expense has been invested in fighting these charges in domestic proceedings, and all they have gone through.”

Justice Boodoosingh also quoted approvingly earlier Ish-and-Steve remarks by Justice Kangaloo, who had conceded “the length of time which criminal trials take to be concluded” in T&T. But that’s no reason, Kangaloo J affirmed, to “order the extradition of our nationals to other jurisdictions where the criminal justice system is allegedly more efficient and effective”.

Justices Boodoosingh, Narine and Kangaloo were talking law to lawyers. Lay listeners like me, however, pick up an ideological bent in favour of “our nationals” facing “a new raft of suffering in America”, where the system only “allegedly” works faster and better than T&T’s.

The justices know down-home investigators, prosecutors, and courts may never manage to arraign Ish and Steve in the Port of Spain Hall of Justice. More “hundreds of court days” since the Boodoosingh J ruling, those cases have advanced nowhere.

So that, on matters that count, T&T justice remains dependably counter-intuitive. Slackness endemic in the executive, legislative and judicial branches perpetuates itself in judges more disposed to “Trini” eloquence than to go-getting activism.

Judicial activism is as foreign a notion as is the US Supreme Court.

Or the UK Privy Council.

Over six years to 2006, T&T High and Appeal Courts had found the Maha Sabha entitled to a radio licence. Judges had quietly deplored the Patrick Manning executive scampishness (about which the DPP still today finds nothing prosecutable) in denying the Hindu group a frequency.

It took the Privy Council to order the Cabinet: issue the damn licence!

The T&T legal “system” finds no mission in erring on the side of common sense and in making things happen. Thus, coup leader Yasin Abu Bakr may never testify before the relevant enquiry.

Lawrence Duprey and Andre Monteil may not make the same great escape from the CLICO/CLF enquiry. Chairman Anthony Colman ruled last week in favour of us “who are not lawyers”, and who would be scandalised if Messrs Duprey and Monteil, “who played a major part in the governance and administration of CLF”, failed to give evidence.

Were that the way to go, I would vote for Sir Anthony as Chief Justice.