By Prior Beharry
THE Judicial Committee of the Privy Council has ruled that the late chief Magistrate Sherman McNicolls acted with “apparent political bias” in a case arising out of the construction of the Piarco International airport.
The accused, mainly businessmen, have had their indictment quashed by the law lords after almost 22-years before the courts.
The decision was in a 26-page ruling delivered on Monday, by five privy councillors – Lord Hodge, Lord Sales, Lord Leggatt, Lord Burrows and Lord Malcolm.
The judgement was delivered by Lord Malcom. He said, “When all the various sources of concern are considered together the observer would be likely to agree with the appellants’ submission that by January 2008 the Chief Magistrate was hopelessly compromised. Given that everything was happening in the full glare of publicity his mind must have been in turmoil.”
The Law Lords noted that McNicolls decision not to recuse himself in an application of bias filed against him by the defence showed an “absence of any reasoning.”
The judgement stated, “Given that everything was happening in the full glare of publicity his mind must have been in turmoil.”
Lord Malcolm mentioned the four cases surrounding the airport construction and also noted McNicolls even met with the sitting attorney general John Jeremie, SC.
He made reference to the corruption case of the former prime minister Basdeo Panday who was given the maximum sentence by McNicolls who had received a cheque from Tony Maharaj on behalf of CLICO subsidiary. The head of CLICO Lawrence Duprey had testified on behalf of Panday that same day that McNicolls recived the cheque.
Lord Malcolm said, “It soon emerged that there was an apparent difficulty with the draft which had
not cleared. However the Chief Magistrate had already used the money to pay off interest on his bank loan and to reduce his overdraft. This required him to take out another loan since in the meantime he had decided to return the money. On 3 April 2006 he told Mr Maharaj that the sale of the land was off.”
McNicolls also refused to testify against then chief justice Sat Sharma after levelling allegations against him. He was investigated by the Judicial and Legal Services Commission for this.
Throughout all of these issues, McNicolls was continuing to preside over the Piarco 1 case.
Panday’s conviction too was quashed by the Appeal Court after it rule that there was apparent bias by Mc Nicolls.
The law lord ruled, “When all the various sources of concern are considered together the observer
would be likely to agree with the appellants’ submission that by January 2008 the Chief Magistrate was hopelessly compromised.
“Given that everything was happening in the full glare of publicity his mind must have been in turmoil. Nonetheless the Board accepts the submission for the respondents that if the bias challenge were to fail there would be no scope for success in the claim for constitutional relief.
“The concerns as to due process and a fair hearing are dependent on the same factors which underpin the judicial review.
“To countenance an inherently vague and novel challenge based on the alleged lack of moral authority of a judge who is otherwise entitled to preside would be something of a slippery slope and difficult to reconcile with established safeguards of judicial independence.”
