Friday, December 21 2007

The long-awaited report of the Mustill impeachment tribunal was finally presented to President George Maxwell Richards on Thursday. The tribunal found no evidence to impeach Chief Justice Sat Sharma, who returned to office yesterday, after the President revoked the suspension. The following is the conclusion of the report of the tribunal.

87. (cont’d) The Tribunal is not engaged in a criminal process. Even if it were to find facts which disclosed a criminal offence it could not proceed to verdict and sentence. It should not make a detour via the law of crime, but should proceed directly to apply the special law created by the Constitution. Certainly, many criminal acts are likely to amount to misbehaviour, but not all misbehaviour is criminal. The word should be understood in context, with the aid of the authorities which have been cited to us, and then applied to the particular facts. In a case such as the present there is no need to formulate a precise definition or to engage in close analysis. Whatever exactly “misbehaviour” may mean, one can recognise it when one sees it.

88. Since removal of judicial officers under impeachment statutes similar to the present is by no means unknown in common law countries this point is of some general importance. In view of our conclusion on credibility it does not however have any impact on the outcome of this Enquiry, and as we have done elsewhere in this report we have left it to be decided on some other occasion, merely noting its existence for future reference.



Are the allegations proved?



89. Against ...this background of detail and uncertainty there stands out the one short and clear-cut question: Has it been proved that the allegations against the Chief Justice are true?

90. We start with the evidence of the Chief Justice. His conduct during the time under review was not, in our judgment, without blemish. The jovial chat with Sir Timothy Cassel about a pending case; his raising of the Hindu wives topic on more than one occasion, his intemperate press release; the over-heated terms of his complaint to the Commission. All these combined with the impression gained during his oral evidence to suggest a propensity to speak and write more freely than was wise, without the balanced sensitivity and distance which should be the halfmarks of a senior judge. But this is not, as we have already emphasised, at all the nature of the case. The Chief Justice does not have to prove anything at all. His stance is purely defensive. The most that can be gained from weighing his evidence is that when it comes to be put in the scale weight must be given to the fact that it was less than perfect.

91. In contrast, when we come to the Chief Magistrate the picture is quite different. His case is “proactive”. At the very outset he came forward with allegations, at first oral and later in writing, the truth of which must be proved, and proved so as to make the Tribunal sure, if it is to recommend a reference to the Judicial Committee. Because he may well have to give evidence on his own behalf in the future we prefer to be reticent in our assessment of his “demeanour” during his evidence before us, but we can at least go this far, that we would hesitate long before concluding, on the basis of the way in which he gave evidence, that the necessary standard of proof has been achieved.

92. There is, however, considerably more to it than this. Prominent among the other factors to be taken into account is motive, or the lack of it. This has been a perplexing feature throughout, though less so in the case of the Chief Justice, who could have had comprehensible reasons for telling lies, simply to defend himself. But what could have prompted the Chief Magistrate to volunteer a fragmentary calumny against a colleague with whom, so far as the evidence shows, he had been on good terms for years? Possible answers may be divided into those which posit that he acted according to his own free will, and those which assert the influence of external compulsion.

93. Taking these separately, one of the major difficulties with this Enquiry has been the absence of any clear and consistent account of why the Chief Magistrate should of his own free will have devised a not very plausible fiction of interviews with the Chief Justice, and then taken it direct to the top public figures. Eventually, the following explanations were extracted from the Chief Justice and his counsel at a late stage of the oral hearing:

(a) Retaliation against the Chief Justice for making allegations about the land transactions: “revenge” was the word used. We are bound to say that we find this fanciful. Quite apart from the objection that when the complaint was first voiced to the Attorney General the Chief Justice had not made any such allegations, if he was going to fabricate a long series of improprieties he would surely have made a better job of it, especially as it would almost inevitably bring down on his head some serious counter-allegations: as in due course it did.

(b) Deflecting attention from his own criminal conduct in accepting a $400,000 bribe. The cheque transaction took place on 28 or 29 March, and a few days thereafter. If this was an attempted bribe, knowledge of it must (if the theory is right) have got out in some way that we do not know about, and the Chief Magistrate must have started to counter-attack almost immediately, by planting in the minds of the Attorney General and others the false story which would in the end lead with maximum publicity to the arrest and attempted trial of the Chief Justice. But the Chief Magistrate waited for weeks after his interview with the Attorney General before placing his fabrication before the senior public figures, and in the long run bringing the roof down on his own head. As a means of deflecting attention this is deeply implausible, and we reject it.

94. The alternative speculations as to motive posit external incentives for the Chief Magistrate to fabricate a story. The first one to be proposed is simple: he was bribed. But by whom, when and to do what? Presumably, it would be someone politically aligned with the principals in the CLICO group; presumably the purpose would be to induce the Chief Magistrate both to render a false verdict in the trial and at the same time to put words into the Chief Justice’s mouth to suggest that it was he who was seeking a false verdict. This is all very neat but there is no evidence at all for it or even for the payment of the sum, much larger than $400,000, which would have been required to induce the Chief Magistrate to forsake his principles and run the risk of exposure and disgrace.

95. Alternatively, it is suggested that even if there was no outright bribe the facilitation of the land re-purchase was the quid pro quo for the fabrication of a story which would get the Chief Justice into trouble. Once again, however, the hypothesis runs into familiar problems. First, if ill-wishers wished to damn the Chief Justice with a false story they would surely have taken the trouble to feed the Chief Magistrate with a more convincing tale, and to make sure that he deployed it convincingly. This did not happen. The accounts of the meetings do not ring true; they do not read like descriptions of discussions between a chief justice and a subordinate judge, and they emerged by fits and starts as the days went by.

96. Moreover, the idea that the Chief Magistrate was so pusillanimous that he said “No”, when taxed by the Chief Justice with whether he felt that improper influence was being applied, when he really meant “Yes”, at a time when he was on the point of plucking up his courage to make a formal complaint at the highest level, is deeply unconvincing,

97. If we had been required to decide whether there was an established motive for perjury on the part of the Chief Magistrate we might have hesitated to return a confident affirmative answer. That is however only a part of the fact as to be taken into account. Much more important is whether the Chief Justice could have had such a motive, and we can find no ground for concluding that he did, for there were no suspicious circumstances surrounding his evidence at all on a par with those overshadowing the accounts given by the Chief Magistrate. The whole subject of the Chief Magistrate’s conduct is shrouded in mystery which we have been unable to dispel.

98. Other considerations tend to reinforce this sense of unease. There is the long interval, after the oral complaint to the Attorney General, before it is put into writing. No satisfactory explanation has been given for this. Nor has there been an explanation for the Chief Magistrate’s failure, which the Court of Appeal regarded as culpable, to convey his misgivings to counsel either at the trial, which had ended only a week before, or during the three further weeks when the decision was under advisement.

99. Equally hard to explain is the way in which the story seeped out by degrees. The formulation of the complaints was a matter of the greatest importance in a situation where some kind of trouble was inevitable. The Chief Magistrate had ample time to put together the document destined for two high officers of state, yet his effort of 5 May 2006 was so thin that it had to be reinforced less than a week later by the second statement, and the various later versions were not wholly consistent with those which launched the present proceedings.

l00. Again, and hardly least, there was the remarkable story of the Chief Justice’s trial. There is no explanation of the Chief Magistrate’s last minute change of heart which can leave his credibility untouched. (And, indeed, none was offered by him in his oral evidence before the Tribunal). Either he was in the grip of conspirators who for some reason wanted to have the behaviour of the Chief Justice examined by an Enquiry rather than in a criminal court, or at least wanted him to be removed from office without being in peril of prison. Or the Chief Magistrate really believed in the opinion that his statements were in some way his property, to be used by the organs of state only in a way of which he approved - an extraordinary misconception for an experienced magistrate. Either alternative raises more questions than it solves. There is also the curious manner in which the matter was handled in court. But whatever the true state of affairs this episode seriously shakes the confidence which we can place in the Chief Magistrate’s testimony.

101.Reminding ourselves once more that the question before us is not whether a case of misconduct is established against the Chief Magistrate, but whether the allegations against the Chief Justice are proved so as to make the Tribunal sure beyond reasonable doubt that they are well founded, then all the Members of the Tribunal are of the unanimous opinion that they are not so proved.

102. This leads inevitably to the conclusion that the Tribunal must recommend that the matter should not proceed to the Judicial Committee.

103. The Tribunal cannot part from this Enquiry without placing on record its indebtedness to those who have unstintingly given their efforts to supporting the Enquiry in all its administrative aspects. Ms Ida Mariana Eversley LLM and her team have, in the face of considerable difficulty, maintained a calm and professional attitude and a continuing good humour which has made a great contribution to the work of all concerned.

104. Finally, although we have already identified the functions which have been so conscientiously and even-handedly performed by Mr Reginald Armour SC and those who have also provided advice and assistance to the Tribunal, we should like in conclusion to reiterate the scholarship, professionalism and diligence for which each member of the Tribunal is glad to place on record his unstinted thanks.



RECOMMENDATION



In the light of the matters set out in our Report the Tribunal humbly recommends to Your Excellency that the question of removal of the Honorable. Satnarine Sharma from the office of Chief Justice of Trinidad and Tobago should not be referred to the Judicial Committee.



Dated December 2007



The Rt Hon

Sir Vincent Floissac QC

The Rt Hon Lord Mustill

Mr D Morrison QC