BY LLOYD NOEL

In these Spice Isles - where everything is nice, and we never seem to have dull moments, and our people have very short memories - we are also expected to have more patience than most others, because we have had more upheavals than all the others.

And even in our political happenings that are very clearly of urgent importance to our people - whether it has to do with the Economy, or national security, or the people’s safety, or bread and butter issues like filling up pot holes in the roads, or implementing youth policy decisions that everyone in authority vows are years behind time - we seem always doomed to have to sit and wait almost for handouts, because too many are afraid or very reluctant to be seen to be rocking the boat, for fear of being branded as trouble-makers of the 1973 to 1983 crop of freedom
fighters.

And that malaise is not only prevalent among those known to have political ambitions to someday take over the control of the nation’s affairs - but throughout the society. From our Church Leaders as a whole, with very few exceptions; our Business Community, except for one or two lone voices; our long-suffering Farming Community in general; and our NGOs with one outstanding exception like a voice crying in the wilderness - and even our legal fraternity, again with very few exceptions - the muted voices are deafening.

And clearly that level of deafness, and blindness that result in dumbness, cannot be in the best interest of our people and struggling development. To raise issues, or take a contrary position, or question statements or decisions coming from those in authority - once done in the public interest and without malice or dis-respect for the persons involved, and their office in particular, cannot be considered in any other light.

The long awaited decision from the High Court, in the case for Judicial Review brought by the Leader of the Opposition, Hon. Tillman Thomas, against the decision of the lone Commissioner Dr. Richard Cheltenham, from the “Brief Case Inquiry” - was handed down by Justice Davidson Baptiste last Friday in the No. Two High Court. I have some problems with that decision.
Readers may recall that the Commission of Inquiry, into the allegations of Financial Impropriety by the Prime Minister, was started at the Trade Centre in Grand Anse last year June. And on the opening day, the said Leader of the Opposition made an Application, through Counsel Ruggles Ferguson, to be granted Leave to appear before the Commissioner and Examine and
Cross-Examine Witnesses.


Now under the Commission of Inquiry ACT, CAP. 58 of the Laws of Grenada, the Person whose conduct is being investigated has the right to be represented by Legal Counsel, and that is understandable.

But in the same Section 18 of the Act, that gives the above right to the person being investigated, any other person who considers it desirable that he should also be represented may, by leave of the Commissioner be represented, as does the person being investigated. In other words, the
person under investigation has the right by Law of representation by Counsel; whereas any other person who wants to be also represented, that person needs the (Leave) permission of the Commissioner.

The Leader of the Opposition, the opposite number to the Prime Minister in the context of the Nation’s official business, considered it desirable that he should be so represented; and that, in my humble opinion, seems also very understandable in light of the allegations being investigated by the Commissioner.

When the Application by Tillman was made in June last year, The Commissioner refused to grant him leave to be represented - and the Inquiry proceeded with only the Prime Minister’s Lawyer, and the Lawyer appointed to lead the Evidence of Witnesses called by the Commissioner being
present.



The Witnesses called were all Public Servants in the Service at the time of the Brief Case incident; one or two had since retired or transferred to other areas in the Public Service, and the Security Officers with the Prime Minister on the trip to St. Moritz in Switzerland were also called.

The whole exercise for that week of the Inquiry was such, that it was described as the “Trade Centre Show, Act One” - and am wondering aloud and in print, whether or not we are gearing up for “Act Two,” because of the decision handed down by the Court last week Friday (31st March).
At the first hearing of the Case brought by Tillman, the Commissioner’s Counsel, Dr. Fenton Ramsahoye, had argued among other things - that the Court had no jurisdiction (authority) to hear the case because, among other issues raised, the Governor General’s proclamations could not be questioned in the Court. This is my summary of the argument submitted.

Earlier this year the Judge ruled that he had such jurisdiction, and went on and fixed another date for further hearing. On that further date Counsel agreed that all the issues were argued at the first hearing, so the Judge should go ahead and make a Ruling on the substantive matter.


In the Ruling last Friday, the Judge held in effect - that the decision of the Commissioner, to refuse Leave to Mr. Thomas to be represented, was illegal, and he therefore quashed that decision. He then went on to remit (send back) the case to the Commissioner, for him to decide whether Leave should be granted to Mr. Thomas to be represented at the Inquiry to Examine
and Cross-Examine Witnesses.

And the Judge also ordered costs to Mr. Thomas. The Judge is saying that it is the Commissioner who is responsible for granting Leave, not the Court - so having held that the Commissioner acted without legal authority, by his refusal to grant that Leave, the Court
is still sending the matter back to him to make a determination as to whether Leave should be granted to Mr. Thomas to be represented at the Inquiry, by virtue of Section 18 of the ACT.

So the question logically begs itself - what if the Commissioner (decides) determines (in his discretion) that Mr. Thomas is not entitled (does not meet the criteria) to be granted Leave, for whatever reason, what happens then?


We have new Rules of Court since 2000, and the objects and intentions behind those Rules are to save costs, reduce time wastage, simplify or bring speedy solutions to issues, and cut out un-necessary technicalities - that neither add nor take away anything to or from the issue seeking a
decision of the Court. In my humble opinion, the decision of last week fell short of doing any of the above.

The Commissioner was exercising his discretion in June 2005, and the principle of Law surrounding the exercise of a judicial discretion - is that it must be done judicially and not capriciously, (i.e. at the whim and fancy of the Judge) it must follow the rules of natural justice where applicable; and must not be prejudicial without very valid reasoning - on the premise that every adverse or contrary decision is prejudicial to the person against whom it is made.


If the Court to which an Application is made for Judicial Review, or in the Case of a matter in the Ordinary Court (Civil or Criminal), where the Judge or the Magistrate exercises a discretion and the matter is taken to the Court of Appeal - that Court or the Court of Appeal, once it is clothed
with jurisdiction, must be able or empowered to do two things, in my view.



It can hold that the discretion was, or was not, properly exercised according to Legal principles.
And where it holds that the discretion was improperly exercised, I fail to see the rationale for not putting right what was wrongly done.


What is more, in my view, is that the Commissioner is not ordered to grant Leave, because he had wrongly exercised his discretion in the first place - and then leave it up to him to decide the nature, extent or parameters of the representation (if that is at all necessary); but the Judgment said that .... “The Commissioner is to make a determination as to whether Leave should
be granted to Mr. Thomas to be represented at the Inquiry” ... ((under Section 18).


The Judgment seems to be making the distinction between the two limbs of Section 18, as the big deal to justify sending back the matter to the Commissioner - by saying that the Commissioner failed to take the second limb into consideration.


But surely that was the major and only reason for the wrongful exercise of the Commissioner’s discretion, so what is to be gained by sending it back to him?

And talking about costs in the whole exercise. Mr. Thomas costs for his Counsel Elliot Motley, Q.C. have to be paid by the State; so have the costs for the Commissioner’s Counsel, Dr. Fenton
Ramsahoye Q. C.



By sending the matter back to the Commissioner, for him to determine Leave or no Leave to Mr. Thomas - those highly priced Q. Cs. will no doubt be appearing again, at further costs to the State and Taxpayers.

And suppose the Commissioner, based on the Judgment, decides that Mr. Thomas does not meet the criteria, and he again refuses Leave for him to be represented - another costly Judicial Review?


Why is it we cannot get things in black or white in these Isles, and we
always have to be burdened with un-necessary grey areas?

Is it some never-ending penalty we have to be paying, for the one occasion when some Patriotic Grenadians saw it fit to take the bull by the horns and bring an end to the horrors of politicians in the Seventies - but because they messed up some four and a half years later, all others and
new-comers are afraid to call a spade, a spade?

As we wait again - to see if the Report by the Reconciliation Commission, into the very events of the Seventies and Eighties that are still haunting us, will be published and the recommendations implemented - we also have to wait to see if, and when, the “Brief Case” Inquiry will be resumed, and how “Act Two” of the Trade Center Show will be played out.