November 11,2016 Source

Dear Editor,

I refer to a letter by Anil Nandlall under the caption ‘The Carvil Duncan Tribunal set up by the President should be disbanded’ (SN, November 3). It reminds me of Procrusteas in Greek mythology. But the victims in this matter are not mythical; they are real, the holders of the two highest public offices in this land – the President and Prime Minister; and the supreme law – the Constitution.

In Mr Nandlall’s words “… the Prime Minister and the President acted prematurely, precipitously, capriciously, arbitrarily, and unconstitutionally when they activated a process to remove Mr Duncan from office before the hearing and determination of the criminal changes”. By some procrustean interpretation Mr Nandlall has stretched the wording of Article 225 of the Constitution in his convoluted and convulsive view of prematurity and unconstitutionality.

His argument (as I understand it) is that since Mr Duncan has been found not guilty of the criminal offence, then there is no legal basis for the Prime Minister to recommend to the President that he commissions a tribunal of inquiry to investigate Mr Duncan for misbehaviour, (and suspend Mr Duncan); and accordingly no legal basis for such tribunal to enquire and make consequential recommendations to the President. As I will show, his posit of prematurity and unconstitutionality proceeds on an utter fallacy and has no constitutional legitimacy. The fallacy is this: that what happens in the trial in the Magistrate’s Court is relevant or material as preliminary, or prior conditions and considerations to inform or influence the Prime Minister’s decision to make a recommendation to the President, pursuant to Article 225. I submit that Article 225 imposes no such limitations. No such limitation is expressed; there is no warrant for such by implication. Since the power of removal is at once recognized and conditioned by the formulae employed by the draftsman in Article 225 for the purpose of the written Constitution, it is their construction (as to the draftsman’s intention) and nothing else that must determine the issue of the Prime Minister and President’s powers.

I agree that Mr Duncan enjoys by constitutional implication a security of tenure. But is his removal conditional upon some prior conviction for a criminal offence, in the event, as has happened in this matter, of a related criminal charge? Absolutely not. There are compelling arguments that militate against that view.

First of all, what about consideration of appeals of the Magistrate’s judgment, ex hypothesi to the Court of Appeal and then to the Caribbean Court of Justice? The Prime Minister would have absolutely no control as to the length of time taken to have these appeals completed, they being in all probability still pending even as the office holder’s term of office expires. If Mr Nandlall’s argument about prematurity be right, then the Prime Minister’s power to trigger the removal process in this specific matter is rendered inoperative, sterile and obsolete on that hypothesis. Plainly, such sterility could not have been intended under Article 225.

Secondly, the presumption of innocence which applies in relation to the criminal charges and on which Mr Nandlall relies heavily for his arguments has absolutely no application to the tribunal’s enquiry as to “misbehaviour”. In its own terms and wording Article 144(2)(a) provides that “Every person who is charged with a criminal offence – shall be presumed to be innocent …” In these tribunal proceedings Mr Duncan could not, is not charged with any criminal offence. The tribunal has no criminal jurisdiction.

Thirdly, the suggestion that the magistrate’s dismissal of the criminal charge is vindication that Mr Duncan has done “no legal wrong that would be considered misbehaviour” is utter rubbish. That argument misconceives the constitutional “misbehaviour” (Article 225) with the statutory criminal offence charged. But they are not

synonymous creatures or conceptions; their respective elements do not correspond; the standard of proof differs – the tribunal applies the lower civil standard, the Magistrate the higher criminal standard. Magistrate Daly has no constitutional jurisdiction; she was not enquiring and investigating some allegation of constitutional “misbehaviour” made by the Prime Minister against Mr Duncan. On that one, the jury is still out.

Fourthly, both the Prime Minister and the President would be abdicating their respective duties under Article 225 if they were to treat the magisterial trial as somehow pre-emptive or anticipatory of the tribunal’s findings (as to “misbehaviour”) and consequential recommendation to the President as to whether Mr Duncan should be removed or not removed from office as a member of the three service commissions.

Editor, Article 225 (as to removal) must be interpreted according to the limitations of its own wording, and not to limitations which that wording does not import. The celebrated analogous constitutional case about removal (Akintola (1963) Privy Council) offers some useful insights into the extent of the Prime Minister and President’s powers, and tribunal’s enquiring capacities. The views posited by Mr Nandlall would impose on the Prime Minister, the President and the tribunal limitations and fetters which the wording of Article 225 does not even remotely import upon any rationally considered interpretation of it. They are wrong, utterly misconceived and must be condignly rejected.

Yours faithfully,

Maxwell E Edwards

Attorney-at-law