Why such mismatch between public statements and responsibility?

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Elections energize a common man to push a small button on a voting machine with a prayer that his vote goes to a responsible person who as the people’s representative in the assembly or Parliament will safeguard his interests and better his conditions. Since poll speeches are not on signed stamp paper, politicians often attempt to promise the moon to the electorate. In the process, many stray outside the Model Code of Conduct zealously enforced by the Election Commission to keep the polls an even contest between ruling party candidates and other hopefuls.

Prior to appointment of T N Seshan as chief election commissioner on December 12, 1990, the model code of conduct was violated by candidates with impunity. Seshan cracked the constitutional whip and succeeded in cajoling strict adherence to the model code of conduct by political parties and candidates.

Elections are meant to send responsible persons as people’s representatives. But often, elections stir the political and social atmosphere to the extent of making even the most sober among the politicians give statements in clear breach of the model code of conduct.

First, it was law minister Salman Khurshid who made a poll promise of carving out quota for Muslims in jobs. Within a week of him being chastised by the EC, fellow Congressman Beni Prasad Verma repeated the mistake and dared EC to take action. Why did Khurshid, who knows law better than most, commit such a folly? And despite his clear indictment, why would his colleague follow suit?

If these two incidents were not enough, another minister Sriprakash Jaiswal goofed up by declaring that if a Congress government was formed in Uttar Pradesh after the elections, there would be President’s rule.

Threat to impose central rule in a state in the midst of a multi-phase election process is a serious breach of model code of conduct capable of influencing people to cast votes in a particular way.

Whatever be the motive behind these statements, a particular dumbness appears to infect politicians during elections when they refuse to learn from mistakes. They forget that democracy flourishes only in a democratic atmosphere and under democratic conditions.

The same cannot be true of Press Council of India chairperson Justice Markandey Katju, a retired judge of the Supreme Court. It was least expected of Justice Katju, who has tremendous knowledge of law and apex court judgments, to threaten a state government with dismissal.

Looking into certain incidents of violence against journalists in Maharashtra and the state government persistently ignoring PCI’s notices, Justice Katju recently issued a showcause notice accompanied with a threat that if this time the state failed to respond, he would recommend to President to “dismiss the state government” under Article 356(1) of the Constitution.

The Congress-NCP government must be laughing as Justice Katju’s threat is more hilarious than legal. Those who have read the apex court’s landmark judgments on Article 356 in S R Bommai case, Kihoto Holohon case, State of Rajasthan case and the latest one in Rameshwar Prasad case would be scratching their heads in bewilderment. For, the Constitution vests the governor of the state concerned and none else with the power to recommend dismissal of a state government.

The streak of irresponsibility found in persons holding high offices had made the Supreme Court to say, “It is incumbent on each occupant of every high office to be constantly aware of the power in the high office he holds that is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office.” [Rameshwar Prasad vs Union of India, 2006 (2) SCC 1].

For similar reasons, Seshan, despite transforming the Election Commission from a constitutional “lamb” to a “roaring tiger” ready to bite rogue politicians, too faced the apex court’s flak when he imagined himself to be the sole dictatorial protector of elections, which is the heart of democracy.

In T N Seshan vs Uuion of India [1995 (4) SCC 611], the SC had said, “His (Seshan’s) public utterances at times were so abrasive that this court had to caution him to exercise restraint on more occasions than one… This gave the impression that he was keen to project his own image. That he has very often been in newspapers and magazines and on television cannot be denied… The CEC has been seen in a commercial on television and in newspaper advertisement… The CEC is, it would appear, totally oblivious to sense of decorum and discretion that his high office requires even if the cause was laudable.”

We sincerely hope politicians and holders of high offices will take a look at the 1995 judgment and bring sobriety into their public utterances.

http://timesofindia.indiatimes.com/india/Why-such-mismatch-between-public-statements-and-responsibility/articleshow/12048723.cms

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Bill to cleanse politics of criminals in winter session

Nov 4, 2011, 03.51AM IST TNN[ Dhananjay Mahapatra ]

NEW DELHI: The government is proposing radical reforms to ensure decriminalization of politics and intends to table a bill in the winter session of Parliament proposing to debar candidates facing trial in serious and heinous offences. At present, under the Representation of People Act, only persons convicted by a trial court and sentenced to more than two years imprisonment are debarred from elections for a period of six years, which commences from the date of completion of the prison term. This allows persons facing multiple murder charges to contest elections. Moreover, even if a sitting MP or an MLA is convicted of an offence and sentenced to more than two years jail midway through his term, he continues to be a people’s representative and can attend Parliament or assembly if he files an appeal in the higher court and gets a stay on the conviction. The proposed legislation, first reported by TOI on June 17, is going to be strict on such exigencies and says those who are chargesheeted by police, CBI or other investigating agencies for murder, acts of terrorism, rape, dacoity and similar serious and heinous offences would be debarred from contesting elections till the trial court acquits them. The legislation is part of the larger bouquet of anti-corruption measures government has embarked upon to blunt the attacks it has faced from Team Anna as well as political opponents over the issue of corruption. Government plans to pass three legislations: Lokpal Bill, Judicial Standards and Accountability Bill and Whistleblowers Protection Bill in the winter session. Besides, it has also planned to introduce Grievance Redressal Bill which, while ensuring smooth delivery of services, will also tackle corruption in providing the same. Conceived as an alternative to Team Anna’s insistence that the proposed Lokpal should be tasked with tackling corruption among lower bureaucracy as well, the Grievance Redressal Bill is being projected as a better way of fighting “cutting edge graft”. Government sources point out that under the Lokpal bill, failure to deliver a service is proposed to be treated as an act of corruption. They say this could only delay the delivery of government services since establishing a criminal charge could take time. As against this, the Grievances Redressal Bill provides to separate corruption from failure to deliver a public service/good and, thus ensuring that the grievance for the failure of delivery of service is redressed within a fortnight. During the discussion on stricter measures to decriminalize politics last week in the Cabinet Committee on Political Affairs, law minister Salman Khurshid argued strongly for the bill. These proposals on electoral reforms were firmed up during the tenure of Khurshid’s predecessor M Veerappa Moily, who had constituted a Committee on Electoral Reforms to recommend to the government concrete ways in which the electoral system could be strengthened through legislative means. Khurshid also laid stress on amending the existing provisions of RP Act to make filing of false affidavits by candidates along with nomination papers to declare their assets and criminal antecedents a serious offence which could attract a permanent ban on contesting elections. By this way, disclosure of criminal background would be made non-negotiable.

It means, if a candidate deliberately conceals his criminal antecedents and is found guilty, then he will be forced to abandon a career in electoral politics. The proposed amendments, discussed in the CCPA, also include withdrawing immunity to sitting MPs and MLAs from continuing with their tenure after being held guilty and sentenced to more than two years imprisonment even if they get the conviction stayed by a higher court on appeal. By this, the government intends to force an elected representative to resign from his membership from Parliament or assembly the moment a trial court finds him guilty of an offence and sentences him to more than two years imprisonment.

dhananjay.mahapatra@timesgroup.com

A public interest litigation petition filed in the Supreme Court by members of the India Rejuvenation Initiative, for fast-tracking criminal cases pending against MPs and MLAs, said: “Given a situation in which ‘winnability’ is the sole criterion for selection of candidates and those with deep pockets alone can hope to win elections, a criminal who has amassed money and influence through a ‘mix of terror and patronage’, has greater chances of winning than a clean and decent individual without such’ capabilities’. And most often criminals do win, which is why they are increasingly present in the country’s representative institutions.” The consequences of this trend “are seen in the increasing criminalisation of the process of governance with ministers, legislators, bureaucrats and unscrupulous businessmen combining to plunder public funds and prey on the public.” Criminal cases against politicians pending before courts either for trial or in appeal must be disposed of speedily, if necessary, by appointing special courts, the petition said. A Bench of Justices P. Sathasivam and Jasti Chelameswar issued notice to the Centre, all States and the Election Commission after hearing senior counsel Rajeev Dhavan.

Khurshid remains consistent on Bail for 2G Scam Accused

Bail is rule, jail exception”, Khurshid reminds SC

In a balancing act, Union Law Minister Salman Khurshid said that while it was for the courts to decide as to who should be locked up, the dictum of bail being the rule and jail an exception has been laid down by the Supreme Court itself. Elaborating on his controversial statement that the judiciary needs to understand the ‘political economy’ in the country, Mr. Khurshid told PTI on Tuesday night that “it is not for me to lock up people, it is for the courts to decide”.

At the same time, he recalled that the Supreme Court had laid down the law “bail is the rule, jail is an exception”. The Law Minister was speaking in the backdrop of his comment, “if you lock up top businessmen, will investment come”, which was termed as “disturbing” by the Supreme Court on Wednesday.

Mr. Khurshid said his comments had nothing to do with the 2G case but agreed with the questioner that a lot of people think that many of those long detained in the scam had been deprived of their liberty.

In a changing society every institution has to respond to the demands of changing time and the courts had done that in the case of protection of environment for which they needed to be complimented.

Similarly, “the demands of our time are that we must appreciate what dissent is”, the minister said adding that it was the Supreme Court that had given bail to Maoist sympathiser Binayak Sen without saying that he was guiltless.

“They (the apex court) said he will be tried. If he is wrong he will be punished. But that is no no reason to keep him in prison. They gave him bail,” Mr. Khurshid said describing the order as “brilliant“. He went on to ask, “But when economic issues come does the Supreme Court pay the same attention to developing economic issues as the rest of us do”.

http://www.thehindu.com/news/national/article2531547.ece

If you lock up businessmen, will investment come: Law Minister

INDIAN EXPRESS

At a time when the judiciary is seized with cases concerning corruption, black money and the 2G spectrum scam, Law Minister Salman Khurshid has said that the judiciary needs to understand the “political economy” in the country.

Speaking to The Indian Express, he said: “What will affect the functioning of the government is if other institutions do not understand the kind of political economy we are faced with today: what is needed to encourage growth and investment? If you lock up top businessmen, will investment come? What optimal structure should be put in place for investment to come?”

Asked if he meant the judiciary when referring to “other institutions”, he replied: “Yes, judiciary is as important a player in the entire effort. Each of the three wings — judiciary, legislature and executive — has to understand the political economy and respond to it. The judiciary can’t be immune to the demands of society in changing times. The judiciary has been making positive interventions in the field of environment, fight against corruption, protection of human rights and social welfare, but it also has to understand the political economy.”

On why the UPA government has been increasingly facing flak from the judiciary, Khurshid said, “It’s not the entire judiciary. There are some judges who have felt that things need to be set right. Sometimes, we may not agree. For instance, we did not agree on the black money verdict and hence sought its recall. Two judges disagreed among themselves. These are difficult issues of political economy. We don’t blame the judges for getting it wrong. On certain things, the executive and the legislature also get it wrong.”

Asked about the controversial Finance Ministry’s note regarding Home Minister P Chidambaram’s stand on the 2G spectrum allocation issue when he was the Finance Minister, Khurshid said, “Even the worst interpretation of that document does not drag in the then FM.”

http://www.indianexpress.com/news/if-you-lock-up-businessmen-will-investment-come-law-minister/857840/0

 

Compulsory Registration of Marriages

Compulsory Registration of Marriages The Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denomination should be made compulsorily registerable in their respective States where such marriages are solemnized.

Giving this information in written reply to a question in the Rajya Sabha this week, Shri Salman Khurshid, Minister of Law & Justice, said that it is not correct to say that the process of registration of marriages is cumbersome. The process for compulsory registration of marriage is worked out by respective State Governments and the Union Territory Administrations by making suitable legislation/ rules or by amending existing legislation/ rules on the basis of the situation obtained in their respective territories to make the process simple and easier. Hence, no separate action by the Central Government is considered necessary, Shri Khurshid said.

JAN LOKPAL BILL- Prime Ministers opening remarks at the All Party Meeting

Manmohan Singh, current prime minister of India.

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Following is the text of the Prime Minister Dr. Manmohan Singh`s opening remarks at the All Party Meeting on Lokpal Bill:

I welcome you all to this All Party Meeting on the Lokpal Bill, which is before the Standing Committee.  In our last meeting on July 3, we all had agreed that we must enact a strong Lokpal Bill which can deal with the menace of corruption.  During the meeting, two Lokpal Bills, one prepared by the official members of the Joint Drafting Committee, and the other, the Jan Lokpal Bill, were presented before you.  The consensus that emerged was that the Government should bring a strong and effective Lokpal Bill in the coming Session of the Parliament for enactment by following the established legislative procedure.

 The Government had accordingly prepared a Bill and introduced it in the Lok Sabha on 4 August, 2011.  The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice and it is being discussed in that Committee. Meanwhile, Shri Anna Hazareji and his colleagues have continued to maintain their stand in support of the Jan Lokpal Bill.  Shri Anna Hazareji went on fast at the Ramlila Maidan from 16 August to press for their demands.

I have personally stated the Government’s position in public on more than one occasion.  We want a strong and effective Lokpal Bill.  Accordingly, we would like the Standing Committee to consider all points of view to evolve a broad based national consensus to create a strong institution of the Lokpal.The fast of Shri Anna Hazareji and his failing health are a matter of concern to all of us.  Yesterday, I felt that I should take a personal initiative to appeal to Shri Anna Hazareji to end his fast so that we may work together in a spirit of cooperative engagement to bring into existence a strong Lokpal.

Accordingly, I wrote to him requesting him to end his fast and reiterated Government’s intention to pass the best possible Lokpal legislation with inputs from civil society and on the basis of the broadest possible consensus.  I said that the  matter was with the Standing Committee and the Committee was entitled to consider not only the Bill introduced by the Government but the Jan Lokpal Bill and other versions like those prepared by Shrimati Aruna Roy as well. I said that our Government was prepared to request the Speaker of the Lok Sabha to formally refer the Jan Lokpal Bill also to the Standing Committee for their holistic consideration along with everything else.  I also said that the Government can formally request the Standing Committee to fast-track their deliberations to the extent reasonably feasible, subject to its discretion and the necessity to reflect deeply and spend adequate time on such an important Bill.

 Following this, Shri Anna Hazare agreed to hold discussions with the Government.  Accordingly, Shri Pranab Mukherjee and Shri Salman Khurshid met with three of his representatives to find a way out of the present impasse.  Broadly their position is that (a) the Government should withdraw the Bill introduced in Parliament (b) the Jan Lokpal Bill should be introduced with some changes in Parliament within four days and (c) this Bill should be discussed and passed during this session of Parliament by extending it if necessary, with minor amendments adopted by Parliament, and without referring the Bill to the Standing Committee.  If a written commitment can be given with timelines, then the representatives said they can hopefully persuade Annaji to stop his fast. I will ask Pranabji to brief us later in more detail on what transpired in the meeting.

 Our common objective is to build a strong and independent institution that will deal effectively with corruption, which is a major challenge that confronts our democracy and our nation. Recent developments have raised issues, related to the functioning of our Parliamentary democracy, that concern all of us.  I, therefore, thought it appropriate to convene this meeting to brief you on these developments and seek your guidance on the way forward.”

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Ombudsman for Legal Sector

A representation of the Lion Capital of Ashoka...

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Government is working on a Bill that envisages an Ombudsman to look into the complaints against lawyers and a Legal Services Board that would regulate law practices in the country. Giving this information in written reply to a question in Rajya Sabha, Shri Salman Khurshid, Minister of Law & Justice informed the House that a draft Bill titled “Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the interest of Clients and Promoting the Rule of Law) Act, 2010” was drafted and uploaded in the website of the Ministry of Law & Justice inviting comments and suggestions of the stakeholders. Comments are being received. Shri Khurshid said the draft Bill will be reviewed based on these comments.

As per the proposed Bill, the complaints against the legal professionals will be examined by the Ombudsman and the report of the proposed Ombudsman will be forwarded to the Disciplinary Committee of the Bar Council of the State with a copy to the proposed Legal Services Board. The Disciplinary Committee of the Bar Council shall consider the report of the Ombudsman and if such report is not accepted by the Bar Council, the reasons for rejection of the recommendations of the Ombudsman shall be explained in detail and the same shall be published in the manner prescribed by rules. This will not in any way minimize the role of Bar Councils, Shri Salman Khurshid said.

However, Clauses 30-33 of the proposed draft Bill empower the Board to issue directions to the Bar Councils in certain specified circumstances and enables the Board to approach the High Court for enforcement of the directions if the Bar Councils fail to comply.

Need to revamp the team:Salman Khurshid, Union Law Minister

Supreme Court of India

The law ministry, and its handling, has been cited as the source of much of Congress and UPA-II’s recent problems. It could also hold the keys to UPA-II’s redemption. Navigating this tricky task is Salman Khurshid , the suave Congress veteran, who was appointed law minister in the recent reshuffle. He walked a controversy days after he was sworn in – the resignation of Solicitor General Gopal Subramaniam. Khurshid spoke to ET’s Rohini Singh and Soma Banerjee about this episode and the many challenges facing the government. Edited excerpts..

What went wrong with Gopal Subramaniam and what would you look for in the new Solicitor General (SG)?

The team leader is the Attorney General and quite clearly he is a real law officer. The constitutional position is of the AG, and the SG is in a sense an extension of the AG. I am quite sure Gopal Subramaniam and the AG were like that when they began and I assume that was one of the factors that went into the selection of that team. It didn’t unfortunately appear to work like a well-oiled machine and there may have been reasons why things were not working that effectively.

I am sad it came to this point of no return and I regret that because these are all fine lawyers. But sometimes two outstanding judges don’t get along and therefore one requirement is that we must have a good team and coordination. In all fields, and particularly in this field you must show due deference to your leader. I think the AG, as I understand him, will expect loyalty, comradeship and free and frank discussions.

Alot of criticism was heaped on Subramaniam for his handling of various cases. Do you think the government’s law officers have done a shoddy job in representing its view?

I would ask you read a book by F Lee Bailey, a top criminal lawyer of the United States. A book called The Defence Never Rests. He says a lawyer has to think on his feet… there is nobody there to help him. I think a lawyer’s role in front of a court is somewhat like that. You have to take a decision all by yourself. Of course you are trained but despite all the training there is something extra.

What’s your strategy going to be? The top three things you need to do.

First thing is we need to give a clear message that we are not ambiguous, we know where we are and where we need to go. We need an SG quickly and we will give you one quickly. We need to revamp the team and put it in a higher gear. Two, I would like to know whether our law officers are receiving their brief quickly enough before the actual hearings to give them enough time to prepare? I suspect this is not happening in all the cases as we are an overworked system.

The third thing is (on a longer time frame) that if the judiciary and the government are to disagree, it should be the judiciary and the government that should disagree and not a minister of the government disagreeing with a judge of the SC. I think in both the judiciary and the government, we need internal effort to make sure what is finally the product of the institution is a common product.

Are the courts sending out a message that this is a weak government?

The courts give different articulation depend- ing on what bench is talking about it. ..The same SC has done a remarkable thing with Binayak Sen. I respect the matter is sub-judice, but I am looking at the reasoning of the court. It’s interesting. They make a distinction between thought and action. They say you can’t punish someone for his thoughts.

The courts have done a fantastic thing. It has reviewed the extent to which in a democracy you allow people to disagree. In Binayak Sen’s case it has wholly strengthened democracy …But we don’t want to be made accountable where we are not wrong. But I don’t blame the courts. They will go up to a point to judge whether I am right or wrong.

Several lawyers, politicians are worried by the inability of accused persons in high-profile cases to secure bail. What’s your opinion?

I will say nothing except that when I read the SC judgements over the years, I get a different conclusion. I can’t say all those judges were wrong, starting from Krishna Iyer. Lalit Mohan Thapar was given bail at the judge’s residence. Now you may not like it, but the point remains that that was the law of the land. That you must go the extra mile to ensure that the person does not suffer before you are able to finally, institutionally be able to condemn him. This is not my view but the view of the SC of the country. The judges can change their mind and there is nothing wrong with it. The problem today is that irrespective of any merits of the individuals involved in these cases we have to care about the law. Therefore legal philosophers have said that hard cases make for bad laws. These may be hard cases, taking the totality of circumstances. I don’t think we should submit ourselves to making bad law.

Do you think the media frenzy around these cases- especially the 2G and Commonwealth games cases weighing on the judges while reviewing bail petitions of the accused?

Undoubtedly. Media pressure is very great and not every judge can withstand media pressure. Forget a judge, not any minister can withstand media pressure. Quite often you don’t take a decision simply because you are advised by your advisers that: “negative bahut ho jayega media main… aap chodiye na isko, kya karna hai, GoM bana dejiye.” You don’t get involved, pass the buck etc. But we have to learn to live with media pressure if you are a judge, a minister or an MP. You have to learn to handle media pressure.

Former law minister Veerappa Moily says he is being blamed for being inept when it wasn’t all his fault.

For one thing, nobody is blaming him. He did some very, very good things, but these are tough times and for us to be able to show a 100% score is tough.

What kind of a score on your performance do you aspire to get?

Three months down the line I must admit I want at least 60% marks, at least a first division. What score would you give law ministry for the last three months? It’s difficult to judge that simply because I don’t know what their question paper was!

LAW MINISTER ADVOCATES REFORMS

The new law minister has urged the Supreme Court to speak in one voice and reform in the direction of consistency, an oblique suggestion that the high-profile individuals arrested in the 2G spectrum scandal and other corruption cases deserve to get bail.

In an interview to ET, Salman Khurshid pointed to the precedent of the judiciary giving bail to industrialist Lalit Mohan Thapar in 1986. “I can’t say all those judges were wrong, starting from Krishna Iyer. Lalit Mohan Thapar was given bail at the judge’s residence.

Now you may not like it but the point remains that that was the law of the land. That you must go the extra mile to ensure that the person does not suffer before you are able to finally, institutionally condemn him. This is not my view but the view of the Supreme Court.The judges can change their mind and there is nothing wrong with it. But my question is: Is it the position of the court or is it one of the positions it has taken?” Members of Parliament A Raja, Kanimozhi and Suresh Kalmadi, as well as top executives of companies, are in jail facing corruption charges, unable to secure bail, leading many to observe that the courts are parsimonious with granting bail.The relentless media attention and pressure could have played a part in courts denying bail to those accused of involvement in corruption scandals, Khurshid said. Media pressure is very great and not every judge can withstand media pressure. Forget a judge, not any minister can withstand media pressure.”

Khurshid admitted the government’s shortcomings, but said the judiciary, too, has failings it must correct. “They must have their own internal norms and codes which allow for a greater reflection of a collective opinion rather than an opinion of one or two benches,” he said.

The minister’s remarks, made in the backdrop of a testy relationship between the government and the judiciary, presage a more assertive attitude towards the Supreme Court by the centre. Khurshid, 58, took over as law minister from Veerappa Moily , during whose two-year tenure the government suffered a series of legal reverses.

Just in recent weeks, the country’s top court annulled the appointment of PJ Thomas as Central Vigilance Commissioner and declared unconstitutional the government- backed anti-Maoist militia group Salwa Judum. It is monitoring the probe into the 2G wireless spectrum scandal and has taken over the investigation of the black money stash overseas by appointing a special team, leading to concerns that the judiciary is encroaching into the domain of the executive.The government has asked the Supreme Court to review its decision to appoint the special investigation team in the black money case. The voice of the Supreme Court, not just that of a judge or a bench, should be heard, Khurshid, who has been designated a senior advocate of the court, said. He cited the examples of Pakistan, the US and Canada, where all the judges of the top court sit together to hear cases, but not in India.

“People say it is now too late for us to turn back the clock. But how can we say we can’t do this but we can clean up black money? Cleaning up black money is as hard as reforming the Supreme Court, not in order to get something of an advantage over them but to actually give them an advantage they need,” he said.”I am not happy that we don’t get to know the vision and the view of the entire court.” Khurshid suggested that Gopal Subramanium , who resigned as solicitor general earlier this month, did not get along well with Attorney General Ghoolam Vahanvati, the country’s top law officer.”It didn’t, unfortunately, appear to work like a well-oiled machine and there may have been reasons of different nature on why things were not working that effectively. I am sad it came to this point,” he said, referring to the relationship between the two men.