Not since the time I clerked in the Bronx Supreme Court in the early 1980s that I listened to or watched so many brilliant oral arguments from both sides in a court case. I also heard similar reviews as mine from others with whom I interacted. (I also listened or watched the other election related cases including the no confidence matter). It was a glory of fine arguments. When all the legal issues are resolved and a legally elected government is in place, Kashir Khan and Timothy Jonas (of course Anil Nandlall also) must be recommended for Senior Counsel (Silk) for their erudition in the law. I have my take on how the CCJ judges would rule. They would not disappoint.
This case has far reaching implications for the Commonwealth and the stakes are also high for the government that needs a favourable ruling or else it is gone. Lawyers who watched the proceedings would have been able to learn a few things from the presentations and what not to do when making oral arguments. In my limited experience as a clerk in a Supreme Court, I learn the procedure of presentations and watched judges and lawyers in action; clerks often commented who impressed the most. In oral arguments, lawyers are not supposed to read a script. US Supreme Court or Privy Council judges don’t like lawyers reading their arguments. And judges like to ask questions for clarity especially from written submissions. I noticed quite a bit of reading from notes. Notes are key words to remind the lawyer what to say, not to be read verbatim. Lawyers are expected to know the subject matter of presentation. In oral arguments, lawyers may glance at notes but it is generally not acceptable to read the argument, which is exactly what some lawyers did in entirety or at various times. Oral arguments in apex court are what they are supposed to be – oral, not read. One has to be able “to argue from the feet”. Some lawyers have honed this practice and are flamboyant. Douglas Mendes seems to display that art. The late Sir Fenton Ramsahoye and Karl Hudson Phillips and Ramesh Maharaj (who regularly appears before the Privy Council, winning almost all of them), among others are perfect examples. They were among the best litigators who honed their craft of oral persuasion to an art; with experience comes improvement. Dr Frances Alexis (appearing in Guyana) practiced that art but stumbled a lot and was not as effective as say a Maharaj or Fenton or Karl or Mendes.
A brilliant lawyer must be able to stand up before the court and advocate a position (make arguments) in a manner that is logical, precise and compelling. Lawyers before an apex court are expected to display charm, charisma, flair, flamboyance; all were on display except from one lawyer. Some lawyers were amiable and spoke with wisdom; judges would have respect for them. All the lawyers in Wednesday’s oral arguments were terrific and made very good presentations, except one, from Trinidad who came across as schlub (virtually talentless) and limited in his knowledge of constitutional law or election law and or legal research and to think he received a SC – for what and why waste lawyer fees on him). Some arguments were lucid and some obfuscating or glib. Some points were persuasive. Overall, the court was lively.
Some lawyers were more outstanding and convincing than others. The lawyers who impressed me most were Kashir Khan, Ralph Ramkarran, and Timothy Jonas – all in support of the appellants (Jagdeo, Irfaan Ali) speaking with clarity and citing appropriate cases as precedents (stare decisis). They really stood out with their demeanor and diction. They all spoke with clarity and were logical. Mendes was his very good usual self with sound arguments of why the CCJ has jurisdiction, and why it must strike down the Court of Appeal ruling (whether wrong or not for taking on an election matter for which it lacked jurisdiction). They spoke clearly in a distinct manner. Ramkarran and Jonas were soft, cultured and gentle as was Mendes. Ramkarran’s requests were specific and spot on — bring this election to an end. As he was in the CoA, Khan was scholarly and did not speak in a monotone voice as some lawyers for the respondents did; vocal variety impress the most and keep judges focused.
Not to be outdone were the sound presentations of Justin Simon, Reginald Armour, and Basil Williams on the respondent side. Simon and Armour made intelligent arguments in a very difficult case. Fyard Hosein brought the curtain down when he appealed to the court to become the Marbury Vs Madison of the Caribbean (CCJ) that established American jurisprudence. Having taught American constitutional law for decades, I am very familiar with this case that gave the US Supreme Court (Apex Court) the authority (power) of judicial review (final arbiter of the US constitution) on whether a lower (superior court) erred in a ruling. Would there be a Marbury moment, as Hosein urged the court, to set precedent? This is a historic and unique opportunity for the court to make law. The court asked appropriate probing questions and it was crystal clear in which direction it was moving. Some lawyers did not directly answer the court’s questions. The Belize judge did not ask much questions but he was pointed in the few he asked although irritated in the end by Hosein’s ongoing presentation that were no longer required after his Marbury injection; Hosein did speak from the heart and was persuasive.
Anyone who watched or listened to the proceedings can predict the outcome. It would be 5-0, an erudite ruling. In the 2-1 ruling of the CoA, would two judges be embarrassed and ridiculed (as happened in the ruling that 33 is not majority of 65) or one judge be viewed as not being in tune with the right reading of the constitution?
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