Court Registrar on alert

Sources said the President’s attorneys —Reginald Armour and Vanessa Gopaul and State attorneys, wrote to Petersen, supplying her with all the relevant information such as their home numbers, cell phone numbers, office fax number, and home addresses — so that they can be reached at short notice.

This follows the announcement by the President on Friday that acting in accordance with Section 103 of the Constitution he had appointed Justice Roger Hamel-Smith to act as Chief Justice until the determination of all proceedings relevant to the complaint of the Chief Magistrate against the Chief Justice had been determined.

According to Section 38 (1) “the President shall not be answerable to any court for the performance of the functions of his office or for any act done by him in the performance of those functions.”

However sources said yesterday that one of the legal options open to the CJ’s attorneys was to file an injunction preventing Hamel-Smith from acting. “It would be one way of indirectly getting around the immunity Section 38 (1) clause. These are extraordinary situations and people are going to become extremely inventive,” one legal source said. Though, the source added, “Of course one could argue that it is an oblique attack on the immunity clause. Since one cannot (legally) attack the President, you move against the person he has appointed.”

The source recalled that in 1987 the courts upheld the President’s immunity from court action when the then Prime Minister ANR Robinson sought to question appointments made by the then President Sir Ellis Clarke who on his last day in office made two appointments. The Court then ruled that Clarke was legally the President when he made the appointments and therefore his action was unchallengeable.

The State, for its own part, is taking its own premptive action in writing the Registrar. The State has been burnt several times in the recent past, where several ex injunctions were granted to the Chief Justice restraining important agencies of the State. Ex parte injunctions were granted to Sharma against the acting DPP, the Commissioner of Police, ACP Wellington Virgil and all 7000 members of the Police Service preventing them from arresting the CJ. Sources said based on this previous experience State attorneys saw it necessary to make a formal request to Petersen to notify them in the event that any further action is taken by Sharma.

“It is not uncommon if one anticipates that someone is likely to be proceeding with an ex parte injunction against you, to write to the Registrar saying that you would like to be notified so that you can oppose it (the injunction),” one legal source stated.

The source added, “And it would be very unusual for the Registrar not to accede to such a request.”

The source added that in some cases, the Judge, (depending on the circumstances) may also ask, through the Registrar (or the Registrar’s representative), that the other party be notified before an ex parte injunction is granted.

The source said it was difficult to understand, for instance, why it was not possible when the last order was amended to include the entire 7000 officers of the Police Force, to give the other side at least one hour or even half a hour’s notice.

Once any legal action is filed, a claim form and other documentation is filed with the Registry, which sets out the reason for seeking the injunction.

The Registrar, based on the pre-determined roster of judges, notifies the Judge who is slotted to sit on that particular issue. The Registrar communicates the decision of the court to all parties of the process.

“The role of the Registrar is important. The Registrar gets the matter to the Judge and conducts the transaction. And the Registrar is the one who would call and say that any Order has been granted,” the source noted.