‘De Jure’ and ‘De Facto’ in Venezuela

It is common, in public international law that when Sovereign nations acknowledge, legitimate governments, they are known as ‘de jure’ and those governments deemed illegitimate, are simply recognised as ‘de facto’.

Thus, in recent days, this is the difference between President Nicholas Maduro and the self-proclaimed Juan Guaido, -Venezuela’s opposition leader -as the ‘interim legitimate President’ of Venezuela and duly endorsed as such, by some Western governments; who can now both be distinguished along the ‘de facto’ and ‘de jure’ lines, respectively.

Undoubtedly, what is not lost in the debate; is the ‘wants’ and the ‘needs’ of the Venezuelan people, who have suffered for many years, through-out the on-going humanitarian, economic and political crisis. The central issue is really, addressing these fundamental problems, so as to alleviate their hardships exacerbated under the Maduro regime in this oil-rich nation.

The rise to power and the grab for power by Mr. Maduro vis-à-vis the alternate National Assembly is well documented and needs no repeating. The dawn of a new democratic era must come from all stakeholders who have the genuine national interest of Venezuela and its citizens at heart; in order to jettison a renewed thrust of economic and democratic stability, by first holding equal and fair elections which reflect the will of Venezuelans.

A country’s will, is indeed thwarted, when there is, a mass exodus of hundreds of thousands of its citizens to neighbouring Latin American countries, by hyper-inflation, from the lack of basic necessities, goods and services and the denial of the rights and freedoms enjoyed and accessed by ordinary citizens within democratic states. These challenges highlight a broken system that not only needs repair but require urgent reform.

These problems can ultimately be fixed from within, a country that gave the world; Simon Bolivar. It is true, diplomacy, dialogue and democracy are not the only options, but conventionally for now, they are the right choices for the people of the República Bolivariana de Venezuela.

 

 

 

 

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The Other V.I.P Reasons -Apart From The Sexual Misconduct Allegations – Why Judge Kavanaugh Must Be Rejected By The U.S Senate.

By David Bryan

***

Background Summary of the Facts

The nomination of Judge Kavanaugh as the next Justice of the Supreme Court of the United States was, on a smooth track, heading towards his confirmation before the Senate Judiciary Committee (SJC) until, it was derailed, by a letter from Dr. Christine Blasey Ford. In that letter, she accused Judge Kavanaugh of attempted rape by him in a room at a house party, which they both attended as teenagers. Dr. Ford said also that Judge Kavanaugh’s friend Mark Judge was present during the entire incident.

In addition, Judge Kavanaugh faced other serious accusations of sexual misconduct from two other women, one being Deborah Ramirez and the second, Julie Swetnick, and a third, from an anonymous individual, only known to the SJC.

There was an immediate call to have a full ‘fair hearing’ into Dr. Ford’s allegations; by allowing Dr. Ford to testify and at the same time, giving Judge Kavanaugh, an opportunity to defend himself from the sexual misconduct accusations. The SJC decided to grant the request for the ‘fair hearing’ on Thursday September 27, 2018.

However, in less than 24 hours, after the very public testimony of both individuals, the SJC proceeded to hold a vote in order to move the confirmation hearing of Judge Kavanaugh out of the Committee onto the Senate floor for final confirmation. That vote was passed 11 to 10 in favour of Judge Kavanaugh.

During these proceedings, a last minute compromise was brokered between Senator Jeff Flake (R-Ariz) and Senator Christopher Coons (D-Delaware) to postpone the vote on the Senate floor in good faith for at least one (1) week pending an updated background investigation to be done by the Federal Bureau of Investigations (FBI); who is the agency responsible for conducting and instituting background checks on all the Supreme Court nominees.

The courageous act to instil a sense of fair play into the proceedings, in order to commence the FBI background investigation of the allegations, was supported by GOP Senators. Susan Collins (Maine) and Lisa Murkowski (Alaska).

It has to be noted that, it is by convention, that any such ‘background check investigation’ by the FBI, can only be initiated by, from and under the direction of the White House(WH) vis-à-vis the President of the United States Donald Trump (POTUS). In its directive, the WH delegated that the investigation would be “limited in scope” and only to “credible” allegations.

At the time of writing the FBI had completed its updated 7th background investigation report of Judge Kavanaugh and the SJC made it available for review to all 100 Senators during the course of today, before a vote on Judge Kavanaugh’s final stages of his confirmation, is scheduled for tomorrow Friday, October 5, 2018 on the Senate Floor of the United States Congress.

In short, on the face of it; looking at the sequence of events and procedure over the last couple of weeks involving the nomination process of Judge Kavanaugh, it would appear to the casual observer; pedestrian and routine, even in spite of the sexual misconduct allegations against him.

On the contrary, upon closer analysis, careful scrutiny and critique, Judge Kavanaugh’s nomination is far from normal, it exposes an extra-ordinary amount of bias and prejudice in his favour, to the extent that it contravenes the time-honoured principles of natural justice, so that to even attempt to confirm him as a Justice of the Supreme Court would amount to a grave mis-carriage of justice in itself, to the highest order against the rules of procedural fairness, independence and impartiality.

Without fear of contradiction, this ‘miscarriage of justice’ is separate and apart from Judge Kavanaugh’s inaccuracies, half-truths, falsehoods, judicial intemperance, bad behaviour, lack of good judgment, lack of credibility and integrity, which are also critical factors that have to be taken into account in his confirmation.

 ‘Ordinary Nominee’ versus ‘Accused Nominee’

First and foremost, it is necessary to remove the noise and confusion surrounding Judge Kavanaugh’s nomination, a clear distinction was needed to be made between, what this author calls, the ‘ordinary nominee’ and the ‘accused nominee’.

Under the usual circumstances of the SJC, an ‘ordinary nominee’ would by definition, be a nominee, who is devoid of any allegations of sexual misconduct or any other allegations. Thus, in the natural scheme of things an ‘ordinary nominee’ would be granted a hearing, move to confirmation by the Senate as a Justice of the Supreme Court, as was recently done, in the process of Justice Neil Gorsuch.

But, in unusual cases, in the course of the nomination process of an ‘ordinary nominee’, the nominee now finds himself in a predicament, whereby he is accused of sexual misconduct. This ‘ordinary nominee’ now is immediately described as an ‘accused nominee’.

There are two instances where the SJC faced two ‘accused nominees’. One, in the confirmation hearings of the now; Justice Clarence Thomas by Ms. Anita Hill, who alleged sexual harassment against the then nominee  and secondly, as  presently in the instant case of accusations of sexual misconduct against Judge Kavanaugh by Dr. Ford and others.

The importance of the distinction,  gives weight to the argument that the SJC is practically legally limited and deficient of any power and authority whether express or implied to properly deal with an ‘accused nominee’ in its original oversight jurisdiction of ‘advise and  consent’.

It took 27 years after Anita Hill, up until, the present in 2018, in the case of Judge Kavanaugh hearings’ to confirm this salient truth of the legal inadequacy, of the SJC- that it has no teeth, to capably deal with ‘accused nominees’ only those ‘ordinary nominees’, who are of the highest judicial character.

Put another way, Congress throughout the  last 3 decades, simply  failed after Anita Hill to correct and or “keep abreast of the standard of fairness which public opinion demanded rightly as it turned out” in rectifying this lacuna as seen presently again with Judge Kavanaugh as an ‘accused nominee’.

This can be compared with, for instance, the Constitution of the United States of America, were “through the years, the Constitution has expanded and developed to meet the changing needs of the United States. James Madison declared,

“In framing a system which we wish to last for ages, we should not lose sight of the changes which ages produce”.

It stands to reason, that the SJC is not legally empowered to hear the case of an ‘accused nominee’ because the allegations are criminal in nature because, in effect, the SJC sits as really a sort of administrative Tribunal, under a ‘civil jurisdiction’ as opposed to a ‘criminal investigative body’.

In other words, the SJC has no locus standi, when it comes to investigating an ‘accused nominee’. It can only ‘advise and consent’ which falls short of the criminal standard for any accused and accuser, and thereby, does unintentionally, an injustice to both parties.

By extension, the argument is put forward that,  the SJC is therefore ‘improperly constituted’  under law to deal with an ‘accused nominee’ like Judge Kavanaugh, so that the SJC has no legal authority to determine the case of sexual misconduct allegations against Judge Kavanaugh, which are of a criminal nature.

Equally, the SJC can only in its original jurisdiction ‘advise and consent’ on an ‘ordinary nominees’, who are supposed to be without blemish, not tainted with any sexual allegations.

For the SJC to therefore ‘advise and consent’ on an ‘accused nominee’ is and was operating, outside its inherent original jurisdiction. The decision, to have proceeded and continued with the nomination, was a clear form of bias in favour of the ‘accused nominee’ Judge Kavanaugh.

How can an administrative Tribunal, such as the SJC investigate criminal sexual misconduct allegations against an ‘accused nominee’ Judge Kavanaugh under the same standard guidelines as an ‘ordinary nominee’?

It is humbly submitted. It cannot. Lord Denman CJ in R v Commissioners (1841) 1 QB 467; said “the court was improperly constituted; and that rendered the decisions invalid.”

‘Judgement clearly dealing with administrative decisions, therefore proceed on the footing that the presence of bias mean that the tribunal is improperly constituted’, so that, then it has no power to determine the case against Judge Kavanaugh as an ‘accused nominee’, and accordingly the decision by the SJC of 11-10 of its decision to move to the floor is void, a nullity and invalid.

Lord Reid in House of Lords in the locus classicus case of Ridge v, Baldwin [1964] AC 40 stated:-

“Time and Time again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void,…The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.”

 Thus the question is now asked, where all the parties accusing Judge Kavanaugh offered a “proper opportunity to state their cases” at a fair hearing?

Unfair Hearing

Dr. Ford and Judge Kavanaugh were given the opportunity to testify at a ‘fair hearing’ before the SJC so as to present and defend their respective positions, given the gravity of  the allegations.

But, this was only a ‘fair hearing for Dr. Ford and to Judge Kavanaugh, in so much as to give their version of the events as they remembered. Since, the SJC refused, to call the key witness mentioned by Dr. Ford, namely  Mark Judge who was alleged to be in the same room; and the other two women,  Deborah Ramirez and Julie Swetnick accusing Judge Kavanaugh, and any of their witnesses.

Was the failure by the SJC to call and or refuse to call the witnesses a failure of procedural fairness?

It was held in R v. Hull Prison Visitors ex.p St. Germain (No. 2) [1979] 1 WLR 1401 by the Court of Appeal which emphasised that “where there is a charge of serious misconduct it is especially important, that procedural fairness should be carefully observed.”

Also, ‘where an oral hearing is given, as was the case of the SJC, it had been laid down in R v Deputy Industrial Injuries Commissioner ex p. Moore [1965] 1 QB 456 at 490 (Diplock LJ) that a Tribunal must:-

  • Consider all relevant evidence which a party wishes to submit;
  • Inform every party of all the evidence to be taken into account, whether derived from another party or independently;
  • Allow witnesses to be questioned;
  • Allow comment on the evidence and argument on the whole case.

Failure to allow the last two rights, which include the right of cross examine, has led to the quashing of verdicts in a series of cases.

The SJC has not carefully observed the procedural fairness or considered the points above-mentioned with respect to the calling of the other named accusers and witnesses thereto. This is breach of the principle of natural justice in the case of serious misconduct allegation against Judge Kavanaugh, and cannot be taken lightly.

It must be noted they were indeed, some Senators on the SJC who called for this ‘procedural fairness’ and requested adjournments to that effect but were flatly refused. This too, was in breach of the natural principle of a right to a fair hearing.

This point is supported in the case of Priddle v. Fisher & Sons [1968] 1 WLR 1478 where it was held that ‘wrongful refusal of an adjournment, when reasonable requested, may amount to refusal of a fair hearing, particularly where the party affected is disabled from appearing at all’.

The hearing before the SJC was not fair but unfair to all the other witnesses and accusers involved in the allegations of sexual misconduct against Judge Kavanaugh because they did not appear at all.

A fair and proper hearing, must, as stated by Lord Loreburn in the House of Lords, case of Board of Education v Rice[1911] AC 179 must include a

“fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to  their view.”

As such, the SJC failed in its duty to give a “fair opportunity” to all parties in this controversy of Judge Kavanaugh sexually misconduct allegations and thereby breached the principles of natural justice.

One may obviously ask the question, would it make sense to have a re-hearing, even though it may appear to be an exercise in futility, in other words, it could be a “useless formality” to now call all the accusers and witnesses, since the result would be the same 11-10.

The rule of thumb is that ‘in principle, it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudiced unfairly’. Lord Wright once said in General Medical Council v. Spackman [1943] AC 627 that :-

“ if the principles of natural justice are violated in respect of any decision; it is immaterial whether the same decision would have been arrived at the absence of the departure  from the  essential principles of justice. The decision must be declared a no decision”.

That is to say even if the SJC will probably vote the same way the SJC has an obligation to call all other witnesses and accusers regardless of the outcome.

Clearly, it is not sufficient to just call Dr. Ford and Judge Kavanaugh, whose searing self-defense testimony before the SJC, can be called into question under the realm of judicial impartiality.

‘No Man a Judge in His Own Cause’

For all intents and purposes Judge Kavanaugh cannot defend himself against accusations against himself in a case involving himself. Nemo judex in re sua. ‘A judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’.

Lord Campbell said in Dimes v. Grand Junction Canal (1852) 3 HLC  759 at 793:-

“…my Lords , it is of last importance that the maxim, that no man is to be judge in his own cause, should be held sacred….”

The reason for this is obvious; Judge Kavanaugh is not going to say he is guilty of the allegations of sexual misconduct against himself in a nomination hearing for the job of Justice of Supreme Court, the single biggest legal career breakthrough for any Judge in the USA. Of course not, Judge Kavanaugh will deny each and every allegation and not indict himself. This is clear cut case of bias.

This practice is frown on in the USA, as was evidently echoed in a letter signed by over 1500 law professors of US Universities, calling for the rejection of Judge Kavanaugh’s nomination, it stated:

“As you know, under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.”

If then by some legal ingenuity that counter-arguments where to overcome the hurdles of bias, unfair hearing , that the SJC was properly constituted to deal with an ‘accused nominee’.  It is in the next heading that Judge Kavanaugh nomination cannot succeed and is in direct contravention of the ‘universal application’ of natural justice and fatal to his nomination and confirmation as Justice of Supreme Court standing as an ‘accused nominee’.

Conflict of Interest between Judge Kavanaugh, White House, FBI and the POTUS

(i)Judge Kavanaugh Nominated as an ‘Ordinary Nominee’ by POTUS

The SJC decide to jettison the ‘investigation’ to the FBI and delay the vote. But the investigation was to be coordinated by the WH under instructions from the POTUS.

The logical question here is,  how can the POTUS select a nominee, his WH help prepare his testimony before the SJC as an ‘ordinary nominee’ then in another breath, aid Judge Kavanaugh in his defence as a ‘accused nominee’, all the while having the sole authority to delegate and direct the FBI in a new ‘background check investigation’ in limited scope as to who should or should not be investigated and decide which allegations of sexual misconduct are ‘credible’ against the same ‘accused nominee’ Judge Kavanaugh, who was chosen by the POTUS?

It sounds circular, but it makes perfect sense in raising the issue of conflict of interest and perceived prejudice.

It must be noted, through no fault of the WH/POTUS and or the FBI this process was not done deliberately or intentionally, this is the procedure which had been followed and laid down by years of precedent and protocol in the nomination of Supreme Court nominees.

As we all know, because it is the habit of history, it does not make it right because, this is how the way things have worked. To say the least, this process is highly irregular, highly bias and prejudicial and in need of urgent reform.

A modern case,  exemplifies the exact point of this undesirable situation, and the source of the quotation, overworked but none the less true, that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.

Briefly, the facts of the case, is that “a solicitor was acting for a client who was suing a motorist for damage cased in a road accident. The solicitor was also acting clerk to the justices before whom the same motorists was convicted of dangerous driving and he retired with them when they were considering their decision. The fact that the clerk’s firm was acting against the interests of the convicted motorist in other proceedings was held to invalidate the conviction.

Lord Hewart CJ expressed the essence of the rule:

“The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done, Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”  (R v. Sussex Justices ex.p McCarthy [1924] 1 KB 256).

The fact at the time of writing the FBI background investigation has been released and that the WH can comment that Judge Kavanaugh nomination can proceed because there is nothing in the report that would  conflict with Judge Kavanaugh testimony; raises and confirms the specter of bias, and this is also borne out by the way in which the investigation was commenced.

(ii) Limited Scope of Investigation

It was noted from the statement of Senator Feinstein (D-California), the ranking member of the SJC that :

“the WH confirmation that it will not allow the FBI to interview DR. Ford, Judge Kavanaugh or witnesses identified by Deborah Ramirez raises serious concerns that this is not a credible investigation and begs the question what other restrictions the WH has placed on the FBI?”

Also, the Attorney for Dr. Ford stated:-

“An FBI investigation that did not include an interview of Dr. Christine Blasey Ford- nor witnesses who corroborated her testimony cannot be called an investigation”

On the grounds that the FBI background investigation did not even consider the statements of the central accuser Dr. Ford and all the accusers and those witnesses renders the confirmation proceeding a nullity in the eyes of the law, since it has denied them the Constitutional right of due process to the said accusers and witnesses.

This issue speaks to itself and for itself, suffice to say in the words of Scott LJ;

“ The risk that a respondent may influence the court is so abhorrent to English notions of Justice that the possibility of it or even the appearance of such a possibility is sufficient to deprive the judicial decision of all judicial force, and to render it a nullity.” Cooper v. Wilson [1937] 2 KB 309.

(iii) ‘FBI Background Check Investigation’ versus FBI ‘Criminal Investigation’

 The FBI is labouring under the same practical limitations as the SJC as it relates to ‘ordinary nominee’ and ‘accused nominee’. The Bureau hands have been tied because of convention, and as such the investigation that can be only permitted is  a “background check investigation” into Judge Kavanaugh alleged sexual misconduct as an ‘accused nominee’.

So in effect, what is required as most commentators realized, is  a full independent criminal investigation, with regard to all and any accusations of serious misconduct against the ‘accused nominee’ Judge Kavanaugh and not a ‘background check investigation’ earmarked for ‘ordinary nominees’.

To do this will take the FBI from under the ambit of the WH and POTUS in their ability to direct and or influence the FBI as to who can or who cannot be investigated.

A ‘background check investigation’ is the incorrect tool in the instant case and would be certainly be limited.

(iv) POTUS Comments on Dr. Ford

Having established, it is bias that the POTUS can chose the nominee on one hand, and then direct on the other hand the type and parameters of investigation, what the FBI is able to or not investigate in the allegations against Judge Kavanaugh, the POTUS remarks at the recent Mississippi rally as the person in charge of directing such an investigation were highly prejudicial.

No judge would comment on the innocence or guilt of an accuse man in public, to do so will invite a mistrial.

POTUS stated about Dr. Ford the following:

” I didn’t know, I didn’t know. Upstairs? Downstairs? Where was it? I don’t know. I had one beer. That’s the only thing I remember”

These comments were described as “wholly in appropriate”; “kind of appalling” and “just plain wrong”.

The impression given by POTUS was that Dr. Ford was lying, not credible and her accusations were made up to simply to discredit Judge Kavanaugh’s nomination.

These comments have the effect of being bias. As Lord Denning MR stated :-

“Nevertheless there must appear to be a real likelihood of bias…. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice is that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people going away thinking “the judge was bias’’. (Metropolitan Properties (FGC ) Ltd. v. Lannon [1969] 1 QB 577

The POTUS, is acting as the role as Justice and or as Chairman, since he is and was empowered to direct and influence the very investigation into Judge Kavanaugh, his comments were not only bias and but ‘raised the likelihood of bias and were directly intended to favour Judge Kavanaugh.

This would immediately, disqualify Judge Kavanugh as a suitable fit and ‘ordinary nominee’ and or ‘accused nominee’ for the post of Justice of the Supreme Court.

Conclusion:

The law of natural justice is abundantly clear. In the instant case, it has been found that:-

  1. The SJC is not properly constituted to hear ‘an accused nominee’ such as Judge Kavanaugh.
  2. Judge Kavanaugh accusers, including Dr. Ford and Deborah Ramirez, and their witnesses have not been given a fair procedural hearing.
  3. Judge Kavanaugh cannot be a judge in his own cause.
  4. The WH/POTUS cannot act for an ‘accused nominee’ then direct an investigation on the same nominee in limited scope to the FBI, by instructing the FBI of who must and must not be investigated.
  5. The FBI cannot use a ‘background check investigation’ to investigate serious criminal misconduct allegations against Judge Kavanaugh. There must be an impartial full investigation independent of the WH/POTUS.
  6. The POTUS cannot issue prejudicial statements against the accuser in favour of his nominee Judge Kavanaugh, to discredit Dr. Ford in any way, as he is the primary adjudicator of the said investigation involving the FBI.

For all these reasons, notwithstanding Judge Kavanaugh’s allegations of sexual misconduct, his inaccuracies, half-truths, falsehoods, judicial intemperance, bad behaviour, lack of good judgment, lack of credibility and integrity, Judge Kavanaugh must be rejected as an ‘accused nominee’ in any future Senate confirmation vote for the post of Justice of the Supreme Court of the United States of America.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Justice Must be Rooted in the ‘Confidence’ of ‘Good Behaviour’

 

“The Judicial Power of the United States, shall be vested in one Supreme Court and in such inferior Courts as the Congress may time to time ordain and establish. The Judges both of the Supreme and inferior Courts, shall hold offices during Good Behaviour,”

                       -The Constitution of the United States of America; ARTICLE III: Section 1. The Judicial Branch                                                  

                                                                                                         ******

By David Bryan

 Introduction

Judge Brett Kavanaugh is the nominee for the post of Justice of the Supreme Court. He has been accused by Dr. Christine Blasey Ford and two other women of allegations of sexual misconduct . The facts need not be repeated concerning the various accusations.

Fair Hearing

Under the principles of natural justice vis-à-vis the right of a fair hearing, both accuser and accused are entitled to be heard. Undoubtedly, the law affords Judge Kavanaugh the presumption of innocent until proven guilty and the right to defend himself from all allegations. Likewise, the onus is on Dr. Ford to discharge the burden of proving the accusations.

The obvious misnomer, is that the Senate Judiciary Committee does not have the jurisdiction to proceed with validating and or exonerating any such allegation, this task has to be jettisoned to the relevant state and or federal law enforcement authorities.

Make no mistake then, the testimony of Dr. Ford and Judge Kavannaugh was the commencement of that fair process and not the end, since in any due process of fair hearings all, any and everyone, including key witnesses such as Mark Judge must be part and parcel of the overall effort to establish the truth, the whole truth and nothing but the truth.

Having recognised that important fact, political inconvenience for some of the eager Senators on the Judiciary Committee not to explore all accusations must not and cannot be an excuse for political expediency in order to short circuit the right of due process of fair procedure because of judicial cynicism .

So that those Senators, mistakenly now feel self-justified, because they have, in the eyes of the public held a hearing, they now, can rush to judgement in the confirmation of Judge Kavanaugh tomorrow Friday, September 28, 2018.

But, the search for truth does not have a time limit and instead of living in the moment, the Senators have a duty to seek out those moments in question relating to any and all alleged acts of sexual misconduct. Half-a-hearing cannot substitute to a complete full investigation into Judge Kavanaugh and those statements of Dr. Ford accusing him of sexual misconduct.

The maxim, however, over-used- is apt in the circumstances, that : “justice must not only be done but should manifestly and undoubtedly be seen  to be done” at the Senate Judiciary Committee nomination hearings.

Good and Bad Behaviour

It is agreed, that the Senate Judiciary Committee’s role is not to conclude guilt or innocence on Judge Kavanaugh or on Dr. Ford based on their testimony. On the contrary, the central oversight is to really confirm or reject a nominee based on several different criteria involved in the process.

It can be argued, that one of the main criteria on the face of it,  based on a strict interpretation and reading of Article III, Section 1 of the Constitution, is that Supreme Court Justices must “hold offices during good behaviour”.

The Article does not say “nominees” hold office “during good behaviour”; since a nominee is just that; a nominee. But, after a nominee becomes a justice, it states expressly such individuals must hold office “during good behaviour”. Does the statute intend to refer to the “good behaviour” of nominees, before they are elevated to Justice of the Supreme Court or does it only relate to past acts of behaviour of the nominee?

The framers, in my humble opinion, would not have wanted ‘the effect to come before the cause’ which would of created an absurdity. This is borne out by the fact that all nominees are highly vetted first to be a person of the highest ethical and moral character before there are confirmed.

So as a corollary, does ‘bad behaviour’ of a nominee disqualify a person from becoming a Justice of the Supreme Court? Put another way; can alleged acts of ‘bad behaviour’ be called into question of  a nominee once confirmed to the Supreme Court? To both questions the answer is yes.

The Test of Confidence

The dictum of Lord Denning MR in the case of Metropolitan Properties [FGC] Ltd v Lannon [1969] 1 QB 577; is instructive in this regard of ‘confidence’ of ‘good behaviour’ were he states:-

“There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman ,as the case may be, would or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking:  ‘the judge was biased’.

The test, therefore,is one of confidence; were ‘confidence’ includes the highest standard of integrity of professional judicial conduct: It is asked then; whether Judge Kavanaugh enjoys the confidence of good behaviour so as to be elected as a Justice of the Supreme Court? Has his confidence of good behaviour been destroyed in the thinking of right-minded people because of the sexual misconduct allegations?

Without the proper full state and or federal investigations, to the first question: No and to the second Yes.

Conclusion

Again, one can argue that, it is not the sexual misconduct allegations, in itself, that should disqualify Judge Kavanaugh. It is whether, there is a breach of confidence in his good behaviour,  that should be the determining factor in his candidacy as a suitable Supreme Court nominee.

A judge who is found to be involved in alleged ‘bad behaviour’ cannot qualify. A judge who is found involved in bad behaviour cannot inspire confidence in the role of justice. By the same token, a judge who is found involved in good behaviour inspires confidence in the legal system as a justice.

Some would want to believe wrongly, that the elevation of Judge Kavanaugh to the US Supreme Court will somehow grant him immunity from any perceived past acts of bad behaviour. It will not and any attempt to nominate him without full due process will expose the 8 other Justices of the Court into a crisis of confidence in their role of justice in the United States of America.

Thus, it  is the paramount duty, for the Senators of the Judicial Committee to protect this institution from being contaminated by alleged acts of bad behaviour of one justice until proven otherwise, since no one is above the law; no man can be elevated from the law and certainly no man is bigger than the law.

 

 

 

                               

The Right to a Fair Hearing – ‘Audi Alteram Partem’ – Must Be Given to Kavanaugh and Dr. Ford

By David Bryan

‘Hear the other side’

“ I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. ‘Adam, says God, where art thou? Hast thou not eaten of the tree, wherof I commanded thee that thou shouldst not eat? And the same question was put to Eve also.’

R v. University of Cambridge (1723) 1 Str. 557 (Fortescue J)

***

It was stated, according to the one judicial dictum quoted , the ‘first hearing in human history was given in the Garden of Eden’. This highlights the fact, that it is fundamental to fair procedure that both sides should be heard: audi alteram partem, ‘hear the other side’. ‘This is the more far-reaching of the principles of natural justice, since it can embrace almost every question of fair procedure, or due process. It is also broad enough to include the rule against bias, since a fair hearing must be an unbiased hearing.’

These principles are equally important in statutory inquiries and hearings as confirmed by the House of Lords in the case of Local Government Board v. Arlidge [1915] AC 120, when Lord Haldane, said

“ My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty is to mete out justice.”

The landmark ruling in Ridge v Baldwin [1964] AC 40 reaffirmed the notion of this right to a fair hearing as ‘a rule of universal application’ in the case of administrative acts or decisions affecting rights.

It is without question that Dr. Christine Ford must be given the opportunity to a fair hearing in raising her allegations, and so too , Mr. Brett Kavanaugh  be given the same equal opportunity to defend himself in a fair hearing any allegations against him of sexual misconduct.

The questions must therefore be asked; how then can the Senate Judicial Committee, charged with the oversight of the process of confirming judicial nominees to the United States Supreme Court, appear to disregard the principles of natural justice by depriving Dr. Ford the right to reasonable notice to present her allegations and thus infringing on her right to a fair hearing?

How can the Senate Judiciary Committee open the door for Kavanaugh to defend the allegations of Dr. Ford, but impose unreasonable, unilateral limitations and deadlines on her right to notice and her right to testify at a fair hearing in order to present her side of the story?

The Senate Judiciary Committee not only has a duty to hear both Mr. Kavanaugh and Dr. Ford but ‘to ensure ‘due process of law’ derived under the Constitution of the United States of America, by enforcing the right of the ‘notion of a fair hearing which in itself’ extends to the right to having reasonable notice for either sides’ case, the right to bring evidence and the right to argue.’ Dr. Ford and Kavanaugh both have a legitimate expectation to these rights enshrined in the principles of natural justice to having a fair hearing.

It would therefore be unlawful and in breach of the procedural right to a fair hearing for the Senate Judicial Committee to proceed in the absence of Dr. Ford’s testimony by seeking to circumvent the long established principle of the right of a fair hearing and those other rights which naturally follow and confirm Kavanaugh to the Supreme Court.

Equally, to impose unilateral deadlines to fetter Dr. Ford’s right to reasonable notice in giving her testimony is in direct contravention of the right to a fair hearing. It cannot be unreasonable in the circumstances, given the fact that Dr. Ford responded before the first deadline imposed by the Senate Judiciary Committee, to positively confirm her desire to testify, amounted to any unwillingness to cooperate with the committee.

For the Committee to now unjustly impose upon Dr. Ford the ‘take it or leave it’ mentality to testifying on Wednesday September 26, 2018, even though she indicated in her said first response that Thursday September 27, 2018 would be the preferred date for her testimony , would certainly be  prejudicial to her right of notice and the right to a fair hearing .

In the ordinary course of things the Committee should have no problem with a 24 hour difference by having a fair hearing on Thursday rather than on Wednesday, for the sole purpose of investigating a serious allegation of sexual misconduct against an individual whose decisions will affect the lives of 300 million Americans for decades.

In the usual business day of law, dates and times for cases are handed down as a matter of convenience and are on all fours with all counsel involved. There can be no good reason why all the parties save any exceptions to arrangements such as i.e Dr. Ford not being in the same room as Mr. Kavanaugh, that a fair hearing cannot be held on Thursday September 27, 2018.

 

 

 

 

 

 

Agreements, Disagreements, Trade Wars between the USA, NAFTA, CHINA and the EU- Finding Practical Solutions.

by David Bryan

Trade differences, deficits, surpluses must be resolved amicably between the parties in order to avoid the escalation of any trade war and or the imposition of further tariffs by the respective countries.

It is time to negotiate and settle all disagreements at the table concerning the following:-

1.  NAFTA

USA, Canada and Mexico

‘An update to the dated agreement that’s favored by all parties’ were expectations have to be realistic and that parties acknowledge whether there is unfair practice, surpluses and deficits in the noted areas in order to resolve said differences.

2.     Trade WITH China

‘Fairer trade for U.S. companies (and the tech industry in particular), plus more help from China’ in helping reduce the deficit.

The possibility of a framework agreement between the two countries on mapping the way forward on trade to de-escalate the imposition of tariffs and barriers by the USA and China.

It does no good for the world to have China and the USA at war in trade. No winners in such a result.

Expectations have to be realistic and that parties acknowledge whether there is unfair practice, surpluses and deficits in the noted areas in order to resolve said differences.

 

3.     Trade with the European Union

‘Reopening negotiations for a trade agreement, like the Trans-Atlantic Trade and Investment Partnership, would reduce barriers to trade between the U.S. and the EU.’

It does no good for the world to have the EU and the USA at war in trade.  Again, there are no winners in such a result.

Expectations have to be realistic and that parties acknowledge whether there are unfair  trade practices, surpluses and deficits in the noted areas in order to resolve said differences.

 

Barbados and its Sovereign Debt

I am of the humble opinion that if Barbados is to restructure its debt; it can do so while paying for and making all of its debt obligations to its external and domestic creditors; including but not limited to “interest payment due on its 6.625 per cent notes due in 2035; and the domestic bond maturity of the $100 million 4.375 per cent Treasury notes due in June 30.”

Barbados has never missed payments on its foreign and local currency debt and it cannot be blamed on the new BLP administration led by the Honourable Prime Minister Mia Mottley, Q.C.  She has inherited an economic chaotic situation that will take time to unravel and get out with the help of the IMF and financial institutions.

If, the last administration was able to never miss a payment, albeit they recklessly placed the Barbados economy in dire straits, this BLP administration has the capability of matching and surpassing that by returning our country to a level of economic wellness and prosperity.

Even though, it is unknown to the extent of the debt burdening this country, it is not impossible, perhaps on the face of it, improbable, that such payments can continue parallel  to the debt-structuring programme.

Barbados and Barbadians have not only been a resilient people but in tough economic times a resourceful people in meeting the challenges head-on that confront its economy today.

 

The Iran Nuclear Deal and the Doctrine of Mistake.

By David Bryan

The trove of declassified information that the Prime Minister of Israel Benjamin Netanyahu released on Monday May 1, 2018 to the world cannot be dismissed as trifling. His decision to do so, would no doubt come at great deliberation, to present the picture of the truth, and only the truth.

The essential take away from the Prime Minister’s revelations is that Iran lied about its nuclear program in deed, word and spirit to the contracting nations made up of United States, United Kingdom, France, Germany, Russia and China whilst negotiating the nuclear agreement or deal.

The extraordinary lengths to which Iran went to conceal its true nuclear ambitions is a testament to its conduct and deliberate intentions to throw the negotiators off the trail indefinitely, and together with this voluminous expose; it must now, carry substantial weight in the path of reassessing this nuclear deal.

But, even in light of all that was shown, which goes directly; not only to the root but flies in the face of the agreement being negotiated in good faith, it appears it has done nothing in moving the needle; especially when one hears such remarks that this is the reason for entering into the agreement with Iran, because Iran cannot be trusted, or that one was not naïve in the negotiations. This misses the crucial point and over-simplifies the fundamental issue at hand.

Surely, Prime Minister Netanyahu’s presentation intent was to break the logjam concerning the signatories’ ability to objectively look at the deal with a new fresh perspective which would entail ‘fixing or nixing’ the deal instead of adopting a defensive posture.

Contextually, having obtained such specialized knowledge regarding the pre-2015 nuclear program of Iran, the real question one has to ask is; whether the signatories would have entered into the same exact deal on the same exact terms. It is difficult to say otherwise and doubtful to state yes.

Doubtful is emphasized, simply because some commentators are forgetting to remember the numero uno point: that this deal is an executed lawful binding agreement or contract. An agreement, which is in fact, is not governed by statements but by the law.

Naturally then, how would the law be applied to this agreement, given now; this new set of circumstances. In short, the common law concerning this type of situation is albeit narrow and limited but made abundantly clear under the doctrine of mistake.

Generally speaking, “the most difficult and perhaps most important type of mistake occurs where the parties share a common misunderstanding which is in some way material to their respective decisions to enter into the agreement, and where the true state of affairs is only discovered after objective agreement has apparently been reached, whereupon only one of the parties wishes to withdraw from the agreement. Such mistakes are sometimes referred to as ‘common’, sometimes ‘misleading’ as ‘mutual’, and sometimes as ‘mistakes nullifying consent’.”

Where such circumstances exist as to mistake, the common law rule is basically stating “where both parties entered into a contract believing something to be true which was later found not to be true the contract has been declared void.

The leading case is the House of Lords case of Bell v. Lever Brothers Limited [1932] AC 161; were the speech of the majority was given by Lord Atkin who postulated the question: ‘ Does the state of the new facts destroy the identity of the subject-matter as it was in the original state of facts?’

The identity of the subject-matter in this case can be presumed to be the capability of Iran’s ability to enrich uranium and the time it takes to achieve that result for a nuclear weapon. This is of the uptmost importance, since the deal hinged and was signed on a false assumption that there was no nuclear program to that effect being conducted by the Iranians pre-2015.

This issue was addressed by Lord Atkin’s in his scholarly judgment, quipped:

“ Sir John Simon formulated for the assistance of your Lordships a proposition which should be recorded” “whenever it is to be inferred from the terms of the contract or its surrounding circumstances that the consensus has been reached upon the basis of a particular contractual assumption, and that assumption is not true, the contract is avoided: i.e, it is void ab initio if the assumption is of  present fact and it ceases to bind if the assumption is of future fact.”

Lord Atkin’s went on to state concomitantly of the meaning of “a contractual assumption”;

“ I think few would demur to this statement, but its value depends upon the meaning of “ a contractual assumption,” and also upon the true meaning to be attached to “basis,” a metaphor which may mislead. When used expressly in contracts, for instance, in policies of insurance, which state that the truth of the statements in the proposal is to be the basis of the contract of insurance, the meaning is clear. The truth of the statements is made a condition of the contract, which failing, the contract is void unless the condition is waived. The proposition does not amount to more than this: that, if the contract expressively or impliedly contains a term that a particular assumption is a condition of the contract, the contract is avoided if the assumption is not true.’

Lord Atkins, then logically stated that “various words are to be found to define the state of things which make a condition.” In contemplation of both parties fundamental to the continued validity of the contract,” “ a foundational essential to its existence,” “ a fundamental reason for making it” are phrases found… in the present case….But “ a fundamental reason for making a contract” may, with respect, be misleading.”

He said:-

“Nothing is more dangerous than to allow oneself liberty…,by importing implications which would appear to make the contract more businesslike or more just. The implications to be made are to be more than are “necessary” for giving business efficacy to the transaction, and it appears to me that, both as to existing facts and future facts, a condition would not be implied unless the new state of facts makes a contract something different in kind from the contract in the original state of facts”

From Bell’s case, it can be concluded; that the fundamental reason for making a contract with Iran, because Iran was untrustworthy is immaterial. What is material are the condition assumptions of the statements of truth, at the time of the signing of the Iran deal.

There are 110,000 files together with 183 disc, showing the true condition of statements of truth which proves the assumption that Iran did in fact had a nuclear program pre-2015; which Iran repeatedly vehemently denied existed at the time of negotiating the nuclear deal.

These new facts, destroys the identity of the subject matter of this agreement which was not only relative but germane to the deal. This intellectual dishonesty cannot therefore be arbitrarily being discounted.

Rather, either the deal is declared (i) void, which may present practical challenges, or (ii) a new deal is renegotiated altogether and or (iii) the deal is amended to encapsulate clauses that reflect, confirmation of the reality of Iran’s blatant bold-face dishonesty.