Thursday, January 18, 2018

Re-Route's lawyer: State delaying case

HOURS after leader of the Highway Re-Route Movement (HRM) Dr Wayne Kublalsingh ended his 21-day hunger strike, the attorney representing the group accused the State of acting in bad faith by commencing work on the contentious Debe to Mon Desir segment of the Solomon Hochoy Highway while the matter is before the court.

Senior Counsel Fyard Hosein told Justice James Aboud in the Port of Spain High Court yesterday that the State was also delaying the progression of the case since they have not yet filed any affidavits in response to the action which was filed on August 3. Hosein said the stipulated time for the State to file a defence has already expired.

In response, lead attorney for the State Russell Martineau SC outlined several reasons why the State has not yet responded to the legal challenge. He also said there were several considerations which would militate against bringing work on the highway to a halt. Martineau said these factors included contractual obligations and possible economic loss to this country's taxpayers.

Saying there was no evidence put before him to support Hosein's assertion that work has started on the disputed portion, Aboud enquired of Hosein the reason why a conservatory order has not been sought through the court to have construction on the highway stopped.

Hosein said to do so would only prolong the determination of the substantive legal issues.

Among the reasons raised by Martineau for the State not yet filing any affidavits in the matter is the difficulty being experienced in securing relevant expert witnesses. He also asked that Hosein provide to the State the names and addresses of the 613 residents on whose behalf the legal action was filed.

Hosein said the State's actions are designed to delay the legal proceedings while work continued on the highway. He said if the Debe to Mon Desir segment of the highway is completed before the matter is determined, any declarations granted by the court would then be rendered useless.

Aboud told Hosein the claimants (HRM) were always free to petition the court to grant an injunction if they have evidence that construction is taking place along the contentious route.

Prior to the exchange, Aboud dismissed an application made by the State to have him recuse himself on the ground of apparent bias.

The State contended the issue of apparent bias may arise because Aboud's brother Gary Aboud is the secretary of the environmental activist group Fisherman and Friends of the Sea (FFOS). The group, on November 23, called on Prime Minister Kamla Persad-Bissessar to produce a technical report which, she said, was done on the alternative route proposed by the HRM.

In dismissing the application, Justice Aboud said Gary Aboud and the FFOS are not parties in the case before him.

Quoting from the judgment delivered by then justice of appeal Ivor Archie in the case of former prime minister Basdeo Panday and Snr Supt Wellington Virgil, Justice Aboud said the test of apparent bias is the impression that is conveyed to the mind of a fair-minded and informed observer.

Quoting further, Justice Aboud said: "The fair-minded observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. That is a critical caveat in a society such as ours that is deeply polarised and where conspiracy theories abound.

"The proper point of departure is the presumption that judicial officers and other holders of high public office will be faithful to their oath to discharge their duties with impartiality and in accordance with the Constitution. The onus of rebutting that presumption and demonstrating bias lies with the person alleging it. Mere suspicion of bias is not enough. A real possibility must be demonstrated on the available evidence."

Aboud said the grounds advanced by the State for his recusal were not made out, and he would continue to hear the case until its conclusion or until such a time a higher court directs otherwise.

The parties were given directions for the filing of affidavits and legal submissions, and the trial dates of 13, 14, 15, 16, and 17 of May 2013 have been tentatively set.

Attorneys Ramesh Lawrence Maharaj SC, Anil Maraj and Vijaya Maharaj are also representing the Re-Route Movement while the State is also being represented by attorneys Deborah Peake SC and Shastri Roberts, among others.