The Judiciary has sought to give an explanation over a clerical error in the court order issued by it, to reflect the judgement of Justice Nadia Kangaloo in social media activist Ravi Balgobin Maharaj’s successful landmark lawsuit over the need for Parliamentary approval in the acting appointments for a Commissioner of Police and Deputy Commissioners of Police (DCPs).
In a press release issued late Saturday, the Judiciary criticised a report in Saturday’s edition of the T&T Guardian, which referred to a release from Attorney General Faris Al-Rawi, who had taken issue with a perceived error in the initial order issued by the court and threatened to appeal whether or not it was corrected.
The report did not suggest that the error was corrected based on Al-Rawi’s comments last Thursday but stated that what Al-Rawi had pointed out was reflected in the corrected order by the Judiciary and Justice Kangaloo’s written judgement, which were distributed late Thursday evening.
In the Judiciary’s release, it claimed that after Justice Kangaloo delivered her judgement during a virtual hearing on Thursday afternoon, an order, which captured what she ruled, was issued around 4.30 pm.
“Unfortunately, it contained a clerical error of the type normally corrected by the use of the “slip rule,” the release said.
It stated that as soon as the error was detected, it was brought in line with the final orders issued by Justice Kangaloo, who, during the virtual hearing, clarified them in response to questions raised by Senior Counsel Douglas Mendes, who led the legal team for the Office of the Attorney General.
It stated that around 5.39 pm, the error was pointed out to Justice Kangaloo’s Judicial Support Officer by an instructing attorney for one of the parties in the case. The correspondence was sent to the other parties in the case.
The Judiciary noted that the corrected document was issued around 7.39 pm and issued to all parties around 8.05 pm.
The Judiciary was careful to note that Al-Rawi’s release, which was sent after the error was already corrected, had no bearing on the correction.
“The press release of the Office of the Attorney General was not seen by the Registrar until well after the correction had been issued, and that it was of no import, consequence or moment to the Judiciary which had done its work as it would have in the normal course of events,” the release said.
The Judiciary stated that there is a difference between the order of the court/judge (meaning the pronouncement by the judge) and an order of the court (meaning the document issued to capture the ruling of the judge).
“The wording of the article unfortunately juxtaposed the two and thus obfuscated the facts and baffled the reader,” the Judiciary said.
Responding to the Judiciary’s press release on Sunday, however, Maharaj said that the input of his legal team should have been solicited before the error was corrected.
Maharaj said while his legal team was copied on the email thread related to the error, the emails were forwarded after working hours and were not immediately responded to.
“I believe the Judge had a duty to give me an opportunity to be heard before correcting her order. After all, this was not a simple correction – it was a substantial change from invalidating the entire 2021 Legal Notice to invalidating one clause. Professional courtesy, if not legal duty, demanded that the court contact my legal team to ascertain our position,” Maharaj said, as he noted that the release was silent on his team being consulted.
He also questioned the Judiciary’s reference to the Supreme Court Registrar’s role in correcting the error.
“No doubt the Registrar would be acting on the instruction of the Judge, as she has no power to amend an order made by the court. Why throw the Registrar under the bus?” Maharaj said.
Maharaj also pointed out that when his legal team was issued with the corrected order, it was an attachment to a blank email and did not contain the explanation subsequently issued by the Judiciary.
“There was no explanation as to why the order was corrected or that the Judge had invoked the “slip rule” to change the order at 8.05 pm. Surely, common courtesy would require that an explanation be given by the court for suddenly sending a revised order at such a late hour,” Maharaj said.
Maharaj also noted that the Office of the Attorney General was yet to appeal the judgement and corresponding orders as initially claimed.
In her judgement, Justice Kangaloo upheld Maharaj’s case over the need for Parliamentary approval under Section 123 of the Constitution after the Police Service Commission nominates persons to act in the posts.
As part of her decision, Justice Kangaloo declared that former police commissioner Gary Griffith’s appointment by the PSC after his three-year stint in the post ended in August was unconstitutional.
Justice Kangaloo also ruled that the Commissioner of Police and Deputy Commissioner of Police (Acting Appointments) (Selection Process)(No 2) Order of 2009, which purported to give the Commission the power to make acting appointments without the approval of the House of Representatives, was unconstitutional and void. She also struck out paragraph four of the Commissioner of Police and Deputy Commissioner of Police (Selection Process) Order of 2021 as being superfluous to the provisions of the Commission.
The initial order issued by the Judiciary suggested that the 2021 Order, which also modified the recruitment process for the substantive posts, was struck out in its entirety.