JAL 27 December 2014 Nice Radio’s Callaloo presents, Just Another Look. Just Another Look is an innovative, exciting, albeit decidedly provocative and controversial, socio-political analysis of issues of a local, regional and international nature. Just Another Look is heard only on Nice Radio on Saturdays at 6.00pm, with repeat broadcasts at 9.00pm on Sundays. Remember too that you can also catch us on the worldwide web, niceradio.info. You can check our JAL blog - vincyview I am, of course, Keith Joseph Introduction Today is Saturday 27 December 2014. Welcome, welcome, welcome to another edition of Just Another Look. Christmas 2014 This serves as a reminder that we are currently celebrating Christmas 2014. This is just so that everyone would know. Just Another Look is well aware that there are many Vincentians who were unable to expend resources on items they usually desire around this time of the year but their economic resources or lack thereof have rendered this an impossibility. The much-vaunted war on poverty seems to have been turned on its head. Poverty exists in St Vincent and the Grenadines and it is no secret. Poverty is not addressed from the political platforms or the halls of Parliament. Poverty is addressed in the trenches where it is evident. Vincentian workers were once of the impression that under a new dispensation those who labour will hold the reins. The big question is the reins of what? Hold what reins? Some Vincentian workers are only now finding out that they can hold on to the yoke of poverty. As Eustace had predicted the public servants have not received any wage and salary increases for 2012, 2013, and 2014. It is now unlikely that they will receive any increases in 2015. This is a ULP administration that loves the working people of St Vincent and the Grenadines. They love you and so you must understand that love has nothing to do with wage and salary increases. Love has nothing to do with putting food on your table. Love has nothing to do with sending your children to school. Love is about adoring the ULP and voting for its leadership over and over and over again. Love is about worshiping the sickly air hostess smile…heh, heh, heh… yuh like it! It’s Christmas and the public servants are feeling the pinch. While it is true that the spirit of Christmas relates to the Christian beliefs the reality is that people still see this time of year as an important one to renew acquaintances and entertain family and friends in a manner significantly different to Carnival. They are not the same. There are simply too many Vincentians who have been disenfranchised and in need. But then again, that may well be love, ULP style. One thing we know for sure and that is poverty is real to those incapable of meeting their fundamental needs for survival. The Privy Council Ruling on James Mitchell vs Ephraim Georges The recent ruling by the Privy Council in the case of former Prime Minister, James Mitchell and Ephraim Georges, Commissioner in the renowned Ottley Hall Inquiry, is food for thought. The appellant is James Mitchell while the respondent is Ephraim Georges, the Commissioner in the Ottley Hall Inquiry. Just Another Look wishes to engage Vincentians to put on your critical thinking skills as we go through this particular situation since it has immense lessons for all of us and shows up how jurisprudence is done at the level of St Vincent and the Grenadines as well as within the framework of the Organisation of Eastern Caribbean States (OECS). For many years people have questioned our jurisprudence, especially after the seeming plethora of cases that were nolly prosequi in the era of the new dispensation ushered in by the ULP administration. As we mentioned in the previous edition of Just Another Look first aired on Saturday 20 December 2014, we might as well label the ULP administration the Nolly Prosequi Administration. We raised the challenge as to the extent to which the ULP administration made the word and the concept of nolly prosequi an integral aspect of the Vincentian lexicon in so short a period of time. Indeed, it may well be common now to have the average man in the street in this country readily listen to an incident and determine in his own deliberate judgement that it is likely to be nollly prosequied It was on 28 April 2003 that the Governor General of this country commissioned Mr Ephraim Georges, a retired High Court Judge, to lead the Inquiry into the failure of the Ottley Hall Project. On 14 November 2003 the Inquiry was officially opened by Georges who informed all that he had taken an oath to conduct a full, faithful and impartial inquiry. Importantly the Inquiry was to seek out the causal factors for the failure of the Ottley Hall Project and identify who was/were responsible for same and their degree of responsibility in this regard. Impartiality on the part of the inquirers was therefore absolutely critical and necessary. For James Mitchell the issue of impartiality was particularly important and he was certain that he would do all in his power to ensure that this was a key feature of the process in which he was involved since he was considered one of the key individuals in the entire Ottley Hall scenario being investigated. In the heady political framework that swept across St Vincent and the Grenadines in the aftermath of the impressive ULP victory at the polls in 2001, the Ottley Hall Inquiry may well have been interpreted as a fulfilment of the manifesto promise in 2001 that stated on page 6 of that document, ULP WILL WAGE A WAR AGAINST CORRUPTION. It must be remembered that on page 6 of the ULP manifesto of 2001 referred to above, a picture of the Ottley Hall shipyard/marina was featured and the second issue raised on the page about the NDP administration was, The rip-off of over $100 million at Ottley Hall. On page 7 of the same manifesto a segment under the Vincentian flag included among the points raised… Conduct a thorough criminal investigation into government corruption since 1984. Is it too far-fetched to argue that the electorate who voted for the ULP would therefore have considered that the Ottley Hall Inquiry was part of the ULP’s eagerness to show how corrupt the former regime was? Is it too far-fetched to assume that even though the Ottley Hall Inquiry was not a court of law, some may have hoped that the evidence produced could be so damning that it could lead to legal action being taken against some individuals from the former regime? It is therefore against this backdrop that Mitchell may have recognised very early that the Inquiry was in many respects an inquiry into him and so he needed to ensure that at every stage impartiality was maintained by those leading the process. The issue that ended up before the Privy Council and which is the primary subject of this piece of our programme deals with a complaint by James Mitchell which essentially claimed that the contents of the Interim Report of the Inquiry evidence apparent bias on the part of the respondent (Georges). By any stretch of the imagination the challenge to the leadership of the Commission of Inquiry is a serious matter and of course raised eyebrows everywhere. There was much said all over the place as to why James Mitchell challenged the Commissioner. But this is a country where rumour abounds especially in the realm of the narrow confines of partisan politics. There are some analysts who may wish to claim that rumour is the stuff of politics and that the Goebbels line of reasoning where it becomes impossible to distinguish fact from lies translates in the Caribbean to rumours becoming fact and fact the stuff of rumours. Mitchell’s challenge was accompanied across the nation by all sorts of comments from all sorts of people. It is most interesting to read the judgement of the Privy Council that we are here discussing. In one segment the statement is made…On 8 June 2007, in what appears to the Board to be a somewhat remarkable turn of events, the Parliament of St Vincent and the Grenadines passed a Bill amending the Commission of Inquiry Act by repealing Section 18 (1) (b), which gave a person in the position of appellant the right to payment of his reasonable costs. In the judgement the Board – the Privy Council, noted that only government people were present at the Sitting of the House of Assembly and the Bill was taken through all three stages in one day ending as Act No. 17 of 2007. For us reading this judgement and following what transpired one understands why the issue is of importance to us as Vincentians. Sometimes when things happen at home and it is highlighted by anyone other than a member of the ULP regime it is often taken as being critical of the administration and one runs the risk of being labelled as anti-ULP. The truth is that it has always been difficult to accept when the ULP administration suddenly changes the rules of the game, as it were. Here is an Inquiry in progress and it started under one set of rules that at the time allowed for an appellant’s costs to be paid. Why? What was the reasoning? Why should the new Act No. 17 of 2007 take immediate effect even though the old Act was in vogue and applicable when the Ottley Hall Inquiry started? Dear listener, try to reason for yourself why a government that claims to play fair and play by the rules and keen on establishing genuine democracy engage in such actions? This is the same question we asked when, following the elections of 2010, we saw some sudden proposed changes to the Representation of the People Act. Why would a government do such things? What is it they are afraid of? Or, is it that they want things to end up in a certain way that would leave some others who oppose them in dire straights of one form or another? Was there no one associated with the government of the ULP whether at home or abroad, no legal advisers, who could have pointed to the folly of changing the law as the Inquiry progressed? Where were all of the legal buffs? What happened to the man with all of these years of experience as a criminal lawyer? What was the rationale of those who occupy top positions in this country’s legal department, for allowing this change in legislation to make its way through Parliament while the Inquiry was already in progress? Was it all about political expediency? Was it about being malicious? Was it about making Mitchell pay? Of course, the Vincentian public probably already know the answers to these questions. Important for us as Vincentians really is what the decision to make the legal change tells us about the ruling regime. That is the very crux of the matter. On 20 August 2007 the Ottley Hall Commission refused a request from Mitchell’s attorneys for written commitment to paying his costs. The judgement states that in refusing the request the Commission…stated it was guided by Parliament’s decision in Act No. 17 of 2007 and that “Parliament’s position on the issue is explicit”. The decision of the Commission was therefore challenged and other matters raised in an application for a judicial review. Mitchell and his attorneys lost the first round when Justice Bruce-Lyle, in a judgement delivered on 14 September 2007, refused leave to apply for the judicial review. Mitchell appealed Bruce-Lyle’s decision and this was heard by the Court of Appeal – Alleyne, Rawlins and Edwards – on 29 November 2007. In its judgement of 7 April 2008 the Court of Appeal granted leave to apply for judicial review and interestingly ordered the respondent to pay 50% of the appellant’s cost. Importantly Mitchell received leave to apply for judicial review on the claim on the grounds of apparent bias or procedural unfairness. Dear listeners, on 1 and 2 December 2010 Justice Thom. She delivered her judgement on 23 June 2011, dismissing the appellant application. On 29 July 2011 Mitchell appealed Justice Thom’s decision, challenging her ruling in respect of apparent bias or procedural unfairness. The appeal was heard by the Court of Appeal – Baptiste, Mitchell, Henry – on 28 February 2012. In its judgement of 25 June 2012, the Court of Appeal dismissed Mitchell’s appeal. Mitchell then appealed on 11 July 2012 for leave to appeal to Her Majesty in Council – essentially the Privy Council. That appeal was granted on 27 May 2013. The foregoing seems rather lengthy but is really a brief overview of the trail followed since the first attempt by Mitchell to have his claim of perceived bias addressed. That brings us to where we are today, addressing the ruling of the Privy Council. The matter was heard by the Board – Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hughes – on 17 November 2014. The judgement we are here discussing was delivered in Mitchell’s favour on 18 December 2014. Here we wish to merely quote the Conclusion which states… 44. The extracts from the Interim Report set out above strongly support the conclusion that, having regard to the context and all the surrounding circumstances, the fair-minded observer would conclude that there is a real possibility that the respondent had made up his mind by the date of the Interim Report that the appellant was at the heart of the wrongdoing which led to the project and its collapse and would not be willing to change his mind, so that his final report would not be impartial. In its judgement the Board identified passages in the Interim Report to substantiate its findings. The language used in the Interim Report is what they felt …the fair-minded observer would conclude that there is a real possibility that the respondent had taken the view that the appellant was guilty of serious impropriety and would not be willing to change his mind. The Board insists at all times that the critical issue in the case is …the view the fair-minded observer would take of the Interim Report. There is much to read in the judgement of the Privy Council bearing in mind that it is only dealing with James Mitchell’s request for an appeal as well as the matter of costs associated with his appeals along the way based on the fact that when the Inquiry started the laws allowed for such costs to be paid. The Board ruled in the next paragraph… 45. In these circumstances the Board will humbly advise Her Majesty that the appeal should be allowed. The parties should make written submissions on the appropriate form of order and on costs within 21 days of this judgement being handed down. The provisional view of the Board is that, in addition to an order that the appeal be allowed, the only other order which it would be appropriate to make (apart from costs) is a direction that the respondent should take no further part in the Commission. As to costs, it is the provisional view of the Board that the respondent should pay the appellant’s costs before the Board and in the courts below. What was the Ottley Hall Inquiry all about? Was it intended to support the claims by the ULP while in Opposition, that the then ruling NDP was corrupt? What do you think? But here we are along the way and James Mitchell must be eternally grateful that we have not as yet removed the Privy Council as our final court of appeal? What would have been Mitchell’s plight had he not had the Privy Council as the final court of appeal? We can tell you he would have had to pay all of his costs associated with his legal battle for what he saw as an absence of fair play. The ruling in Mitchell’s favour serves to confirm the claim by Eustace and others that despite their distance from us, indeed perhaps because of their distance from us, the Privy Council remains decidedly objective in their legal analyses. Dear listeners, the Privy Council stood its ground and engaged in the kind of analysis we expect from an unbiased and fearless legal institution. Language is a funny thing and this is the reason why we here at Just Another Look spend so much time appealing to our listeners to engage brain to the full and apply critical thinking skills at all times when analysing what is happening around is. Some may recall that Just Another Look asked very early how was it possible for someone who was not even in the country at the time to declare Glen Jackson’s death an assassination and this even before the Police had concluded its investigation. It is the reason too why we raised the same concern when we quoted from The News newspaper dated Friday 12 December 2014, page 2, addressing the death of Edgar Cruickshank as he attended an NDP rally in South Leeward a few days earlier… Even before preliminary investigations were done and despite comments by witnesses to the contrary, Minister of State in the Prime Minister’s Office, senator Julian Francis, has stated publicly that the incident where a motorcar ploughed through a crowd during the opposition New Democratic Party (NDP) meeting at Clare Valley last weekend was a “genuine accident.” It is always important that justice be allowed to take its course. The entire Caribbean has been engaged for many years in a discourse, at times very heated, on the Caribbean Court of Justice as the region’s final court of appeal. Refresh yourselves on some of the arguments against the CCJ Remember the outstanding article written by eminent Caribbean jurist, Fenton Ramsahoye on this subject? In an article on the CCJ carried in the Jamaica Gleaner dated Monday 23 June 2003, we read… Guyana-born Dr. Fenton Ramsahoye, a leading Caribbean jurist, in delivering a lecture organised by the Trinidad and Tobago Civil Rights Association and Public Defenders earlier this month, said that the legal systems of Caribbean countries were different in terms of legislation. You cannot have judges sitting there who do not know anything about Roman law in Guyana or the French law in St. Lucia, saying that they are trying cases when these legal systems are active and they regulate peoples rights from day to day, he said. All of the advances we have made in constitutional law, we have made in the Privy Council, and we have made those advances by reversing judgements which these judges have been giving in the West Indies, he added. Ramsahoye now accepts the CCJ but that does not change the point we wish to make here. In many quarters very strong feelings remain about the judgements made by our Caribbean administrators of justice. There are still many who seem to think that the administration of justice in the Caribbean has a very distinctive political tinge and that political witch-hunting occurs with great regularity. There are some who think that there is a heavy price to pay for administering justice in a fair and unbiased manner. One must admire the courage of Justice Adrian Saunders, now a member of the CCJ, for his stance in the matter some years ago that led ultimately to the governor demitting office. But in this Caribbean of ours just how many Adrian Saunders exist enough to encourage a move to ready acceptance of the CCJ. Listen again to what the Privy Council stated… 44. The extracts from the Interim Report set out above strongly support the conclusion that, having regard to the context and all the surrounding circumstances, the fair-minded observer would conclude that there is a real possibility that the respondent had made up his mind by the date of the Interim Report that the appellant was at the heart of the wrongdoing which led to the project and its collapse and would not be willing to change his mind, so that his final report would not be impartial. The respondent here is Ephraim Georges. Essentially the Privy Council ruled… that there is a real possibility that the respondent had made up his mind by the date of the Interim Report that the appellant was at the heart of the wrongdoing which led to the project and its collapse and would not be willing to change his mind, so that his final report would not be impartial Impartiality is at the very core of the administration of justice. The fact that the Privy Council could have ruled in these terms must be seen as particularly instructive and leaves us wondering about many, many things. In par 33, the ruling states… The Board has reached the conclusion that, contrary to the conclusions of the courts below, the Interim Report was expressed in such terms that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the respondent was biased such that he would not approach the remainder of the Inquiry with an open mind or, put another way, that he would not conduct an impartial Inquiry, so far as the conduct of the appellant is concerned. The Privy Council members in the case appear clear in their judgement. The issue of objectivity or rather lack of objectivity seems to have come into play. Essentially there seems a suggestion here that before the Inquiry was completed, based on the language used in the Interim Report, George’s may well have arrived at a conclusion in respect of James Mitchell’s involvement in Ottley Hall and that this may prejudice any of the future proceedings. The Board ruled that Georges should take no further part in the Inquiry. That must be a major blow to the ruling ULP regime. It may also be sending a very strong message to those who worked with Georges in the preparation of the Interim Report. It may also send a very clear message to those who started gloating after they saw the Interim Report. The judgement should also be a very clear message to all involved in law and in the administration of justice. Of interest to us here in contemporary St Vincent and the Grenadines is that the Privy Council arrived at conclusions that were importantly different from the courts through which this matter had already passed in several respects. It is not that the law Lords are condemnative. That is not the way things are done. That they differ and that the difference comes from our final court of appeal is what is important. When such things happen is it not often the case that the populace must necessarily raise eyebrows in respect of the previous rulings and question their bases? Is this not the case? When this happens do the populace not remind themselves of other rulings and raise concerns about the judgements passed? What do we know in society today? The experience and judgements of some lawyers, magistrates and judges are always open to question. However, the average man in the street, anxious to avoid lawsuits and expensive lawyers, remains fearful of raising concern publicly. This is unfortunate. The public have, unfortunately all too often, given lawyers, magistrates and judges a certain aura of infallibility that they seem to take seriously. The public remain scared of these people. After all, they seem to have the power to dispense justice and mercy as they deem fit, based on their own analyses. But we as the public also have sense. We have intelligence. We ought not to readily lie prostrate before them. When we find them falling short, we seem amazed. We almost feel sorry for them. The fact is that we ought to feel no pity for them. They feel no pity for us. We are all human beings struggling to survive in an increasingly evil world. All of us are called upon to be fair to each other. But we are so eager to see things in a particular light that we often fall short and end up being judged unfair to others. Political myopia seems ever so prevalent in Caribbean societies today, bred in large measure by near-incompetent leadership eager to have the minions clamour at their voices. Truth is not always sought after in the world of politics. Indeed lies appear to be the preferred option. Politicians make things up. Many of them conjure up falsehoods then deceive themselves into believing them as truth even as they daily regurgitate it to the masses they lead. Too many of our politicians do not believe in the existence of a God even as they call on his name to win the votes of the electorate. Some politicians do not fear God, even as they profess to do so. Why do politicians lie? Why do politicians eagerly pursue and perpetrate falsehoods on others even as they hug, kiss and smile their way into the hallowed halls of Parliament? Who knows? We have been brought up believing that crime, deceit, falsehoods and corruption do no pay. When we look around; when we examine our Vincentian society ever so closely, what is the truth in this regard? Where is the war waged on crime and its causes? Where is the war against white collar criminality? We can only hope that the experience of this latest ruling by the Privy Council serves to open the eyes of Vincentians. Lawyers, magistrates and judges are far from infallible. In this regard they are like politicians. Indeed it is not in any way surprising that lawyers often turn to politics. Why do so many lawyers become politicians? It may well have to do with what they see themselves achieving in the field of law. Perhaps it is that they relish the obeisance they so often get from the poor who have no choice but to turn to them in need and pay whatever is demanded for their services. Perhaps too, lawyers become politicians because they too feel a certain sense of power and infallibility all wrapped up in one. In the end, it may well be that Ecclesiastes, was right when he declared… “Vanity of vanities,” says the Preacher, “All is vanity.” Ecclesiastes concluded… Fear God and keep His commandments. For this is man’s all. For God will bring every work into judgement, including every secret thing, Whether good or evil. J8 VAX Today the 207h day of December 2014, marks 2,987 days since the disappearance of SVG Air J8 VAX, if we are actually checking the day the plane disappeared on Sunday 19 November 2006 with pilot Dominic Gonsalves and one passenger, Rasheed Ibrahim. J8 SXY Today the 27th day of December 2014, marks 1,671 days since the disappearance of another SVG Air aircraft, J8 SXY, a Cessna 402. Just so you would remember, this aircraft left St Vincent in the evening of Thursday 5 August 2010 bound for Canouan. Like J8 VAX, the aircraft never reached its destination. It never completed its mercy mission. The plane disappeared and as yet no word has been received in respect of the lone occupant, the pilot, Suresh Lakram. The sad case of Patricia Bowman Just Another Look wishes to leave our listeners with the sad reminder that in this Christmas season Alban Bowman, will sit in sad, quite reflection on the cruel death of his wife. She died a cruel death on 19 September 2008. Who cares? Where is justice in this matter? In this season of peace, goodwill and joy, Alban has little to celebrate but instead recall the good times he shared with Patricia. One wonders however, where is justice for him? Nuff said!!! You have been listening to another edition of Nice Radio’s Callaloo presentation, Just Another Look. Just Another Look is an innovative, exciting, albeit decidedly provocative and controversial, socio-political analysis of issues of a local, regional and international nature. Just Another Look is heard only on Nice Radio on Saturdays at 6.00pm, with repeat broadcasts at 9.00pm on Sundays. Remember too that you can also catch us on the worldwide web, niceradio.info. You can check our JAL blog - vincyview I am, of course, Keith Joseph
Posted on: Sat, 27 Dec 2014 22:32:10 +0000
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