Nizam wins, Max unfair
By AZARD ALI Wednesday, February 6 2013
THE removal of office holders in public institutions by the President of the Republic has always been held to be a “rubber-stamp” function, but a High Court judge yesterday declared otherwise.
Justice Judith Jones declared that President George Maxwell Richards acted unconstitutionally in firing Nizam Mohammed two years ago as chairman of the Police Service Commission (PSC), over remarks he made of ethnic imbalance in the hierarchy of the police force.
The judge said the dismissal was not “fair play in action”, because Mohammed, a former Speaker of the House of Representatives and an attorney, was not given an ample opportunity to defend the allegations against him of racial bias. Mohammed was fired as PSC chairman in April, 2011, after Prime Minister Kamla Persad-Bissessar consulted with Opposition Leader Dr Keith Rowley and advised the President to revoke his appointment. Mohammed sued the State on the ground that he was not given a fair hearing by the President. The Attorney General defended the lawsuit on behalf of the President.
Yesterday, Jones delivered a 27-page judgment in the San Fernando High Court, a ruling which attorneys said, cast a new light on the role and functions of the constitutional head of the country in respect of removal of persons from public office such as service commissions.
It comes just over a month before Richards’ term as President ends on March 17.
Jones said Mohammed was appointed on July 21, 2010 by the President to head the PSC, after consultation with Persad-Bissessar and Rowley. But she said that at a Joint Select Committee of Parliament in February, 2011, Mohammed made certain statements “with respect to the ethnic composition of the leadership of the Police Service”.
The statement caused great public controversy, the judge added, in which there was a public outcry for Mohammed to be removed as PSC chairman.
On March 28, 2011, a statement was issued from the Prime Minister’s office, condemning Mohammed’s statement as inflammatory. On that same day, Persad-Bissessar met with Richards at President’s House.
Jones went on to state that on March 31, 2011, Mohammed was summoned to meet the President at President’s House and he was given a choice of two days, April 1 or April 4. Mohammed chose the first day, the judge stated, but the meeting with the President lasted one hour during which the issue of his statement of racial imbalance and written complaints by two members of the commission were discussed.
The President then informed Mohammed that he had to consider whether to revoke his appointment because his alleged remarks of ethnic imbalance was outside the remit of the PSC chairman. Therefore Mohammed, the President intimated, had acted irresponsibly.
Jones stated that Mohammed told Richards that he did not think the allegation by the commissioners constituted incompetence and that he should be given an opportunity to seek legal advice, probably from a British Queen’s Counsel.
But Jones stated: “The President responded that he could not wait that long. The claimant (Mohammed) enquired the reason for treating the matter with such urgency, and the President stated that the matter was hanging around for too long.”
Three days later, Mohammed received a letter from the President which notified him that his appointment as PSC chairman had been revoked.
In her judgement, Jones stated that it was not for her to determine whether the President’s decision to fire Mohammed was right or wrong, but whether the procedure followed was fair, in accordance with the enjoyment of a citizen’s right under Section 4 (b) of the Constitution and 5 (e), which deals with his or her right to protection of the law and a fair hearing respectively.
Firstly, Jones stated that it cannot be objectively said that Mohammed ought to have known that the purpose of his meeting with the President was for him to present a case against his removal. The fact that Mohammed chose to meet the President on the first date, the judge added, suggest that Mohammed was unaware of the purpose of the meeting.
In fact, Jones said that having regard to the importance of the office of head of the PSC and the consequences of being fired, Mohammed could not have expected that the President would have dealt with “such a serious consequence in so casual a manner”.
Jones stated that Mohammed requested from the President an opportunity to seek a legal opinion from a British Queen’s Counsel. However, Jones stated that the fact that Mohammed knew that his statements about ethnic imbalance would have been discussed by the President, did not mean that he should have been expecting the President to fire him.
Jones said: “To my mind, going into a meeting expecting to be challenged or even chastised for a particular stance, is a far different thing from an expectation that those discussions without more, could result in your removal.”
The judge went on to state that Mohammed not only requested from the President to be given an opportunity to present him with a legal opinion, but also wanted an opportunity to face persons who made allegations against him.
Jones then went on to rule on letters written by two commissioners to the President, the first of which Mohammed knew about via email. About the second letter, Jones stated that it was first presented to Mohammed in his meeting with the President. The judge stated that Mohammed therefore, was taken by surprise. Jones stated: “In this context, the claimant’s evidence that he was taken by surprise, is understandable.”
Jones stated that when the President told Mohammed that “to see what his attorneys could do” by Monday, April 4, 2011, Mohammed was left with the impression that the President was willing to consider a legal opinion sent within that time frame.
Jones ruled: “It is clear however, that the President did not let the time frame, suggested by the President himself, expire but rather served the claimant (Mohammed) with his removal notice at 10.30 am on the Monday morning.”
Jones then stated that the circumstance under which Mohammed was fired, was unfortunate and stated: “To my mind, the circumstances under which the decision was reached, when examined objectively, do not demonstrate fair play in action. This is without a doubt an unfortunate situation but at the end of the day, the issue for my determination is not whether the decision of the President was right or wrong, but whether the circumstances in which it was made, afforded the claimant (Mohammed), a proper opportunity to answer the case made out against him.”
Jones stated that she is satisfied that Mohammed’s constitutional rights were infringed.
As regards cost, the judge invited attorney Fyard Hosein SC, instructed by attorney Ravi Mungalsingh, to make submissions, as well as attorney Gerald Ramdeen, who represented the Attorney General.
Commenting on the judgement, Mohammed said that he felt vindicated. He said: “This is precedent for the entire Commonwealth. But my main concern, was to clear my name.”
Flashback: Nizam Mohammed as he was about to leave President’s House, St Ann’s on April 1, 2011 after meeting President George Maxwell Richards to discuss calls for his dismissal for comments on racial imbalance in the Police Service. The President fired Mohammed, an act which High Court judge Justice Judith Jones yesterday declared was unfair in a lawsuit Mohammed filed against the State.