By ANDRE BAGOO Friday, August 24 2007

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CHIEF MAGISTRATE Sherman Mc Nicolls has blocked moves by the Judicial and Legal Service Commission (JLSC) to suspend him on six disciplinary charges brought against him for failing to allow himself to be cross-examined in the criminal inquiry against suspended CJ Satnarine Sharma.

Yesterday, Mc Nicolls was granted an injunction by High Court Judge Justice Charmaine Pemberton in a rare vacation sitting of the Port-of-Spain Civil Court. Mc Nicolls’ move was also to stop the possibility of a tribunal being set up to investigate him. Such proceedings could have culminated with his eventual dismissal.

By letter dated August 2 the JLSC had signalled its intention to Mc Nicolls that he would be interdicted/suspended under Regulation 89 of the Public Service Commission Regulations. He was served with six disciplinary charges alleging that he brought the administration of justice into disrepute by failing to allow himself to be cross-examined in the collapsed inquiry against Sharma. A copy of that letter was obtained by Newsday.

Mc Nicolls was informed that “the Commission proposes to interdict you from duty on full salary in accordance with the provisions of Regulation 89 of the Public Service Commission Regulations.” He was given a 14- day deadline after receipt to respond to the charges and was served with the letter on August 7. Newsday understands that Mc Nicolls responded on Wednesday in time, denying the charge.

Regulation 89 empowers the Commission to interdict an officer only when it is in the “public interest to do so.”
Mc Nicolls from Page 3A

But in his motion filed on Wednesday, Mc Nicolls’ lawyers are arguing that, “the public interest is not affected nor in peril of being put in peril by (Mc Nicolls) not having testified (in the Sharma case).”

They are also arguing that, “the decision to interdict Mc Nicolls from the Office of Chief Magistrate is illegal, procedurally improper, unfair, has been inordinately delayed and/or irrational or unreasonable and an abuse of power.”

Pemberton yesterday granted leave for judicial review and stayed all interdiction proceedings under Regulation 89. In an in-camera sitting yesterday morning attended by Mc Nicolls’ lawyers Stanley Marcus and Israel Khan SC, she adjourned the matter for conference call on September 20. Pemberton opted not to allow the media into the hearing because it was her “policy.” The hearing lasted half-an-hour and the matter was deemed “urgent”.

The stay granted orders to the JLSC to stop disciplinary proceedings. It will give Mc Nicolls leave to make a claim for the JLSC to permanently “refrain, desist, or otherwise cease from taking any further step, or making any further decisions or giving any further directions in connection with the preferment of the six charges.”

The six charges against Mc Nicolls allege that he brought the judiciary and the JLSC into disrepute by informing Gilbert Peterson SC, the lead prosecutor in the Sharma case and Carla Brown-Antoine, Deputy Director of Public Prosecutions (DPP), that he was “not prepared to testify further” in the inquiry.

The dates of Mc Nicolls’ alleged misconduct are February 27, March 1, and March 5, the dates on which he signalled his unwillingness to Brown-Antoine and Peterson and on which the Sharma case collapsed.

The JLSC is a quasi-judicial body and is, as such, susceptible to judicial review challenges.
On Wednesday, lawyers acting on behalf of the Chief Magistrate filed his motion in the Port-of- Spain High Court asking that the JLSC’s decision to charge him be set aside arguing that it was “null, void, illegal and of no effect and contrary to the principles of natural justice and/or irrational and/or in excess of jurisdiction and/or an abuse of power and/or without evidential foundation.” In an affidavit also filed in the Port-of-Spain High Court late Wednesday, Mc Nicolls explained his filing for a stay of proceedings.
“I fear that the Commission will now take steps to appoint a disciplinary tribunal to hear the charges preferred against me and will also suspend me from duty and I pray that this Honourable Court grant the relief sought in my application,” he says.

In the motion filed, the Chief Magistrate’s lawyers also maintain that he has done nothing wrong. Quoting an excerpt from his response to the JLSC’s investigating officer in the matter, Justice Sebastian Ventour, the court document argues that Mc Nicolls would have testified had he been forced to do so.

“In spite of the fact that I had come to the conclusion not to testify in the Sharma criminal matter, if the DPP’s lawyers of the presiding magistrate had indicated to me that my reasons for not testifying were unacceptable I would have testified.”
Mc Nicolls is the main witness in the tribunal set up by President George Maxwell Richards to investigate claims that Sharma interfered with the 2006 Basdeo Panday Integrity trial. It is due to start hearing next month.

Hendrickson Seunath SC, Vice President of the Law Association, has opined that disciplinary proceedings against Mc Nicolls would not have affected his testimony before the tribunal. He had, however, called for Mc Nicolls’ immediate suspension in the light of the fact that the Chief Justice has also been suspended.