Ruling on Sharma Monday

In one of the fastest appeals to be heard, the appellate court heard submissions until 3.10 pm yesterday before reserving its decision to 2.30 pm on Monday.

Deputy Director of Public Prosecutions (DPP), Carla Brown-Antoine, Assistant Commissioner Wellington Virgil, and Commissioner of Police Trevor Paul, are appealing the decision of Madame Justice Judith Jones who, on July 24, ordered that CJ Sharma cannot be arrested on a warrant on a charge of attempting to pervert the course of public justice until the hearing and determination of his judicial review case.

When the appeal started shortly after 9 am, there were no available seats. When the case ended hours later, there was just a handful of persons in the public gallery. The appeal was heard before Justices Margot Warner, Ivor Archie, and Paula Mae Weekes.

Douglas Mendes SC, who appeared for Brown-Antoine, said there was no political interference in the decision to charge Sharma with a criminal offence. He said the allegation of political interference raised by Sharma was something which could be dealt with in the criminal courts on an abuse of process complaint.

He said the only evidence put forward which could possibly be referred to as political was the meetings between Prime Minister Patrick Manning and Attorney General John Jeremie on the one hand, and the Chief Justice on the other. In both meetings, Sharma alleged that he was pressured into resigning with the threat of prosecution.

Mendes said the question for the court was not whether the Prime Minister or the Attorney General accepted the Chief Magistrate’s evidence and presumed Sharma’s guilt, or the Prime Minister or the Attorney General pressured Sharma to resign or threatened him with the alternative of criminal prosecution.

The question, he stated, was whether the PM or the AG acted on any such presumption or by reference to any such threats to put pressure on any or all of the alleged decision-makers. He said the Chief Justice’s case must fail because there was no evidence of any contact between the PM and the AG with any of the decision-makers. Mendes who said the deputy DPP was not politically influenced, disputed Sharma’s contention that it was Brown-Antoine who advised the police to charge the Chief Justice.

Justice Warner raised the question of inadmissible evidence. Mendes replied, “If there is evidence that is heresay, it has to be given its due weight.”

JUSTICE ARCHIE: Have you addressed your mind to this matter?

MENDES: You must be referring to the evidence of the Chief Magistrate. I can’t see how that impacts upon the political interference issue.

Justice Archie wondered if a judge could be dealt with only under Section 137 of the constitution, or if a criminal charge could be brought against that person. Referring to the suspension in 1992 of Justice Richard Crane, Justice Archie said judges fall into exceptional circumstances.

Mendes said that could not be the case, otherwise it would apply to all public servants. He said public servants are entitled to a hearing before disciplinary charges can be laid.

But Justice Archie pointed out that public servants do not have the protection as judges under Section 137. Referring to the Crane case, Mendes said before a charge can be laid, a judge is entitled to a hearing. “What is good for the goose should also be good for the gander,” Mendes told the court. “There is nothing in Section 137 which excludes criminal prosecution.”

Mendes pointed out that Sharma was given a hearing and his lawyers were provided with a summary of the allegations made. He said there was no basis for the complaint that Sharma was not heard.

Ian Benjamin, who appeared for Virgil, went through the affidavits of Sharma’s son Shiv and ACP Clive Reyes as to what transpired at the Chief Justice’s residence on the evening of July 14 when the police went there to arrest Sharma.

Benjamin said an injunction was granted by telephone preventing the police from arresting Sharma. He said the police left the CJ’s premises at 6.40 pm satisfied that they were restrained from doing so. But he said the Chief Justice went to court and got another order at 10.05 pm. “There was no need for that order later that night,” Benjamin added.

Kerwyn Garcia, who appeared for the Commissioner of Police, said if Sharma is arrested and processed, he has the right to challenge the proceedings in the criminal courts. He said Sharma would suffer no harm. “If he is innocent after that process, he will be entitled to claim substantial damages in the courts.”

In reply, Sharma’s lawyer Alvin Fitzpatrick SC, pleaded with the court to maintain the injunctions against the State. He said a well-informed and fair-minded observer would form the view that there was possible bias in the context of leading up to the decision to prosecute the Chief Justice.

“It starts with the Prime Minister’s threat that the CJ should resign or face the disgrace of criminal prosecution,” Senior Counsel added. Then Justice Archie asked, “If I am sitting in a case and I whisper in my colleague’s ear that my cousin’s case is coming up tomorrow and I want him to show favourable consideration, isn’t that an attempt to pervert the course of justice?”

Fitzpatrick responded, “No.”

JUSTICE ARCHIE: It isn’t? There is nothing in the law or the constitution which states that a judge ceases to sit in court after he is charged with a criminal offence, that is unless the President does otherwise.

FITZPATRICK: The Chief Justice will suffer far greater harm if he is shackled and led to prosecution.

JUSTICE ARCHIE: Shackled?

JUSTICE WEEKES: Unless he behaves very badly.