Wednesday, December 9, 2009

NUGGETS FROM THE COMMENTS SECTION

A reader named "Marlon" made a valuable contribution on the message boards and asked some relevant questions. I want to get into the habit of answering some of these contributions on occasion to foster a constructive public debate on The Rag. Without further ado, here is the unedited version of what "Marlon" wrote:

I am trying to follow you and I see your point somewhat, I makes no sense but I see your point. May I then ask sir, as a lawyer, are you saying then that you cannot, or anyone for that matter, be impartial to issues. You have made a point of apparent bias on the part of TI's Victor Hart. You have made out a case of case of apparent bias on the part of Prf. John Uff and another commissioner in the CoE, but I am finding great difficulty in following your argument. I must say, if I am to make the assumtions that you have, that you too may be seen as being biased against those opposite to Udecott, considering that you have represented the Harts. I am just following logic and making the very assumptions that you have.


Marlon, your points are all valid, but I would say the this:

Apparent bias is not the same as actual bias. However, in law the effect is the same, i.e., that where there is apparent bias or actual bias the judicial officer must step down or the findings of the court/tribunal will be thrown out. The case that you might say is “the grand daddy” in all this is the Pinochet case. You will recall that in the case General Augosto Pinochet, the former Chilean dictator was arrested in London on an extradition warrant from Spain. He appealed the Order of the High Court that he be sent to Spain to stand trial. The Court of Appeal turned him down. He then appealed to the House of Lords (the Privy Council). The House of Lords held that because one of the three judges had a connection with Transparency International (the judge’s wife had been a director of TI) that there was the possibility of apparent bias and that as a result Pinochet could go free! (You will remember that TI had been extremely critical of Pinochet’s regime). The apparent bias of one judge was enough to “contaminate the entire panel.
The House of Lords said that they were absolutely satisfied that the judge in question was a most honourable person and that they believed that he was not biased. But they readily admitted that there could be an argument of apparent bias! And that is my point!
And, yes, you are right. If I had been asked to be a Commissioner in this Enquiry I would have had to turn it down as I once upon a time acted for Calder Hart (though I am not his attorney today). Further I was a lawyer in the Scarborough General Hospital Commission of Enquiry and played no small part in that Enquiry where it was directed that the police should investigate NH International Caribbean with a view to seeing whether or not NHIC should be prosecuted for larceny. (Incidentally, this police investigation has yet to take place!) My comments in that Enquiry would also probably preclude me from sitting as a Commissioner in this one because it could be argued that they show an apparent bias against NHIC. And it would be irrelevant to my protesting that I consider myself to be a fair minded person who would deal with the facts as presented. That may very well be true…….But there could easily be an argument that I had an apparent bias even if (assuming but not accepting) it could not be shown that I had an actual bias.
Having said that, I am not sitting in judgment of any of the parties in this Commission. Further, what I have been trying to do is to alert thinking people like your good self of what I perceive from my knowledge and experience to be the very real dangers of the Uff Commission becoming a monumental waste in every meaning of the word! I have studiously avoided, or tried to avoid, defending either UDeCOTT or Calder Hart. In fact, if you re-read my blog you will see that I have said several times that I believe that there are serious questions that need answering.

Either way, this is the kind of debate that is worth encouraging and I appreciate anyone who takes the time to contribute in a constructive manner.

Robin

4 comments:

  1. Thank you for your response.

    May I point out that I am in full agreement with you, as you would recall at the beginning of the enquiry, many had called for Mr. Israel Khan SC to step down. His serving on the CoE presented a real opportunity for this thing to be dismantled and thrown out the window, but it went on nonetheless inclusive of Mr. Khan. So I am agreeing with you.
    Like you, I am convinced that all is not well with this Udecott affair, and there are too many unanswered questions, on the part of all sides. Even those who have called for this Enquiry, I am careful to not fully support any one side because what they champion may somehow resemble what I stand for. What I am saying is that before Udecott, the very complainants were very aware of all that was wrong pertaining to this sector, but at that time there was no urgent need to change anything (it served its purpose); I would say no more on that, for unlike you I have no court cloths and I definitely can’t afford you.
    The coming weeks would be very interesting. Presently, some new developments (antics) have emerged, we see that the Harts has no intention of challenging Mr. Carl Khan’s statements, what would this mean for the validity of his statements?

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  2. Perhaps Mr. Montano has a better legal insight, but my understanding from hearing Mr. Solomon, the lawyer for UDeCOTT speak about this on Tuesday is the following:

    1. By not challenging the Khan statutory declaration, it will go into evidence as unchallenged.
    2. Calder Hart gave evidence in his deposition that directly opposes that claims of Mr. Kahn. So, Mr. Khan's statements have indeed, for the intents and purposes of these hearings been challenged.
    3. Mr. Hart's lawyers ascribe so little credibility to Mr. Khan that they did not want to give him the opportunity to say anything more in public with the purported intent of smearing the Harts.

    There is a press release that addresses this specific issue on the udecott website.

    All that being said, what Chairman Uff concluded on Tuesday afternoon was that. Mr. Khan and Mr. Hart had made conflicting statements and that the commission has not (yet) chosen to accept the validity of one statement over then other.

    These are the facts. Now perhaps some brief personal opinion. I have a tough time believing the accusations of Mr. Khan. If you look at his statutory declaration (was posted in full on the guardian web-site a few days ago), it is unfathomable to me how much attention he has gotten, it is a four paragraph piece that could have been written by a smart sixth grader and has not a single shred of hard evidence attached to it...

    And since Mr. Khan's declaration has been made public, no shred of hard evidence has been found to support his allegations. No birth certificates. No genealogies. No interviews with family members, teachers or neighbors in Malaysia. No letter to the board of Sunway's Malaysian parent company, nothing... this is all about as suspicious as any rumor I have heard about the Harts.

    Then take into account the fact that Mr. Khan is Sherrine Hart's ex-husband and you have a compelling motive for him to go out and try to harm her.

    Honestly I would not be one bit shocked if the Commission even without cross-examination concludes that Mr. Khan's evidence is not credible even knowing everything you know about Calder Hart.

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  4. Chester,

    This excerpt from the Express of Sat Jan 9 tells all, I hope you did not bet too much on your position.

    At no point did Mr Solomon or anyone else submit that the evidence was untrue, nor has this subsequently been asserted. While Mr Solomon did indicate he would contend that the evidence was inadmissible, no cogent ground in support of such inadmissibility has ever been put forward,’ Uff stated in a draft affidavit filed in the High Court late yesterday.

    Uff said during a private meeting, Solomon attempted to persuade the commissioners not to put the declarations of Khan on the website at all.

    ’By the end of the second meeting, it was clearer to me that we could not continue receiving submissions in private and that the declarations had to be made public,’ Uff said.

    He said that ’far from demonstrating any bias against UDeCOTT, the fact that the commissioners agreed to meet with counsel for UDeCOTT and Mr Hart in private session, was an exceptional concession in their favour’.

    In relation to the allegations of the family link, Uff said the fact that Khan was prepared to give formal evidence of his claims had potential repercussions: if they were true, Hart’s own evidence was false, and the propriety of the contract to the Malaysian firm was thrown into doubt.

    He stated that it was open to UDeCOTT and to Hart to challenge Khan’s evidence on their own or in cross-examination, but no such challenge has been made.

    Uff stated that he could not see any basis on which the evidence of Khan could be challenged as inadmissible and the contention of UDeCOTT and Hart that it was, had never been explained. He said there was nothing sensational of Khan’s evidence, as UDeCOTT and Solomon claim, but rather it ’challenged the truthfulness’ of Hart’s evidence

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