DALY BREAD: Exercising power without legitimacy; why Chief Justice must say “goodbye” not “sorry”

EPL Infrafred Sauna

On Thursday last, by a vote of nearly 2 to 1 in the case of each resolution, the members of the Law Association of Trinidad and Tobago, (LATT) the governing body for lawyers, declared their loss of confidence in the Chief Justice. By a similar margin, it dealt with the other members of the Judicial and Legal Service Commission (JLSC) and called on the Chief Justice and his JLSC colleagues to resign.

The vote took place at a special general meeting, which had the largest turnout I have ever seen. Although readers will be familiar with the background, it may be useful to put the meeting in context in order to make the point that this meeting was a key moment in the pursuit of accountability by public officials.

Photo: Chief Justice and JLSC chair Ivor Archie (centre) during the 2011 National Awards.
(Copyright News.gov.tt)

There are two critical components in the exercise of power.  One is the lawful authority to exercise the power. The other is the moral authority that underlies the exercise of that power and which rests on the trust and confidence of the citizens.

The general meeting of LATT was triggered by the exercise of the powers of the JLSC to select and recommend persons for judicial appointment.  That is their lawful authority. However, the JLSC cannot properly exercise that power without a prior exercise of due diligence on the credentials, suitability, standing and availability of the candidates it is considering.

Members of LATT had before them the issue whether the JLSC failed to do due diligence on the former Chief Magistrate when debating the no confidence motion and call to resign resolutions.

An equally important issue was put before the meeting. That was the reaction of the JLSC to legitimate inquiries about what it had done or failed to do and to criticism of its acts and omissions.

When its acts and omissions were first subjected to legitimate inquiries, the JLSC was utterly dismissive. When forced to respond by the continuing pressure of public opinion, it took out a two-page advertisement in the print media and gave further explanations by means of media release and letter.

Photo: President Anthony Carmona (centre) appoints High Court judges Kevin Ramcharan (far left), Marcia Ayers-Caesar (second from left) and Avason Quinlal-Williams (far right) in April 2017.
Also in the photo is Chief Justice and JLSC chairman Ivor Archie.

The explanations were inconsistent in some respects one with the other. More offensively the JLSC never once acknowledged that it had even a share of responsibility for the now notorious debacle of 53 part heard cases having to be started over. The starting over course of action will of course be subject to obvious coming legal challenges.

Every word uttered by or on behalf of the JLSC, set about to blame others or to shirk responsibility. Its words did not contain even a token expression of regret. It is too late for that now.

That wrong and strong attitude has destroyed the public trust and confidence in the JLSC and has resulted in the overwhelming passage of the resolutions of no confidence and call to resign. The Chief Justice and the other members of the JLSC as a result, have lost their moral authority to a degree that they have lost their legitimacy to exercise the constitutional authority entrusted to them.

Lack of diligence and of accountability are quite different matters and not to be confused—as some have attempted to do—with impeachment on the ground of misbehaviour under the Constitution.

The loss of confidence and legitimacy of the JLSC guarantees, if they cling on to office, that any appointments they purport to recommend in the future will be under a cloud and the legitimacy of the appointees will be seriously infected.

Photo: Chief Justice and JLSC chairman Ivor Archie (left) signs a MOU for use of a new automated Case Management Information System. (Copyright Judiciary of Trinidad and Tobago)

We hear that additional promises of recommendations for appointment have already been made. It appears that in one case there may be more of the proverbial water in the judicial brandy applying the famous description of late Chief Justice Isaac Hyatali. I should also mention the current assignment of civil work to judges who have exclusively criminal law experience and who may not have worked with the Civil Proceedings Rules.

The discredited JLSC ought to have mercy on the institutional reputation of the Judiciary. The JLSC members should walk to protect the reputations of those fine and hard working judges we do have.

The Chief Justice’s senior colleagues should be telling him the game is up both in the interest of the country and their own interest. Stability requires that the Judiciary come out of the baleful gaze of a disquieted public and riotous accused.

Another fallout of this debacle is a further painful questioning by the man in the street whether we can be the ultimate guardians of our legal affairs.  This is a bad blow for the Caribbean Court of Justice (CCJ), to which Michael de la Bastide gave a flying start. The CCJ should take careful note of the perils of an “I am the boss” attitude and of breaches of good governance.

This has been a trying time, even for a robust commentator. Many thanks to those whose messages of solidarity have come in pleasing numbers.

Photo: Chief Justice and JLSC chairman Ivor Archie.
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About Martin Daly

Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago. He is chairman of the Pat Bishop Foundation and a steelpan music enthusiast.

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  1. Trinidad Express Editorial: An unacceptable secrecy

    THE mystery surrounding the Carmona tribunal report into the charges against former magistrate, now Justice Avason Quinlan-Williams continues to deepen with the latest refusal by the Director of Personnel Administration to release the tribunal’s report to the civil society pressure group, Fixin’ T&T.

    It is the second time that an attempt to get information on the report has been blocked.

    The first occurred in October 2014 when Chief Justice Ivor Archie denied the Sunday Express’ request for a copy of the tribunal’s report clearing Ms Quinlan-Williams.

    Both denials cited Public Service Regulation (102)(2) while the latest adds Regulation 109 and Section 32 of the Freedom of Information Act (FOIA), the latter being the over-arching basis for not releasing a document with material deemed to have been obtained in confidence.

    Now, as before when we were denied, this newspaper finds difficulty in accepting the grounds on which the report has again been denied.

    In our view, the decisions of both the Chief Justice in 2014 and the DPA this week to invoke Regulations (102)(2) and 109 are open to challenge.

    Our position now, as then, is that while Regulation 102(2) prevents the disciplinary tribunal from disclosing the report to the officer charged or any other officer not authorised to receive it, there is no such requirement on those who receive it.

    In this case, that would be the Judicial and Legal Service Commission.

    Especially now that the case has been closed, we see no reason for this continued secrecy surrounding the tribunal report which cleared Ms Quinlan-Williams of the very serious charges of misconduct arising out of her granting of bail to an accused who, only a few hours before, had been denied bail by a fellow magistrate.

    Further, we are greatly puzzled by the DPA’s request for more time to supply Fixin’ T&T with something as simple as the date on which the one-person tribunal of Justice Anthony Carmona (now President Carmona) submitted its report to the JLSC clearing Ms Quinlan-Williams.

    What could possibly delay the release of such a straightforward piece of information?

    Already greatly mired by a series of self-inflicted wounds, the JLSC is only digging itself deeper into the hole by not making the report available through the DPA in response to this request from a civil society organisation.

    By so doing, it would appear to have learned nothing from its recent trials which pointed clearly to the need for greater transparency in its dealings as an imperative in repairing the public trust that has been so carelessly squandered-assuming it is not too late for doing so.

    In any case, the public is entitled to ask why a tribunal into the public actions of a magistrate must be clouded in secrecy.

    It goes against the very grain of justice in a democratic society that a matter involving a public figure, committed in a public place, and involving persons who were being tried in open court, should be hidden behind a veil of secrecy.

    Surely, this cannot be the end of this matter.

  2. The law Association does not appoint the Chief Justice the President does.

  3. “Obfuscation” comes to mind!

  4. I am convinced that these people want to make the country impossible to govern.

  5. I reiterate the judiciary is in a mess, but let’s start at the beginning. Was Marcia Ayers truthful in her interview with the JLSC . Its like when you go to be interviewed for a job, the pannellist put questions to you, and they hope you answer truthfully. From my readings it appears that Ms Ayers was not truthful regarding how many unfinished cases she had pending. There are so much elements to this story. Question should Ms Ayers give up a promotion because of pending cases?.Can’t another judge continue the cases? Is that the procedure?. Why should a judge have 53 cases? is it her fault the cases pending so long?, What role do lawyers have, since many of them represent many persons and at times cases are put off, because they are unable to attend Courts in the East, West, North and South simultaneously. The blame game goes on an on, Ms Ayers, the CJ, the JLSC , It however raises the question of why more judges are not appointed with the increased number of cases? The current fiasco at the Judiciary is not being addressed realistically by lawyers who are looking for solutions,but instead have been turned into apolitical football by leading Opposition lawyers to distract from the real issues, many of which they are tied up in. Also why is Sat Sharma giving the CJ advice? You have no moral authority sir, you have also contributed to the erosion of the Judiciary. Get over your amnesia and look in the mirror

  6. This is yet another example of third world mentality, playing at following the Westminster system of government and yet not really understanding what it is and how it works. We have seen many such examples in the past and will see much more in years to come. It is indeed a sign of immaturity, like children playing at being adults.

    Aside from the arrogance and that tick-like digging in by the chief justice, I have noticed that he tried to pin the blame on the president for the appointments at the judicial and legal service commission. A case of “the dog ate my homework”. The president is a mere figurehead. He rubber stamps recommendations made by the judicial and legal services commission, which is chaired by the chief justice – that is the link between the JLSC and the CJ. however, it is the JLSC that has the responsibility for vetting any judicial officer who is to be promoted (or disciplined). The final responsibility lies here. Not with the president!

    A lot of people have commented on this issue. The majority are not aware of the serious consequences, not only to the judiciary and people awaiting judgments…it affects even the international reputation of the country, and has direct effect upon trade and economics. After all, who would want to invest in a country that appears to be unstable, or whether the legal outcome of disputes would be uncertain?

    There was a time when those elected to high office were thought of as the cream of the educated in society… Now the reverse might be true. No one seems to have shame any more. No one seems to care about their personal reputation, unless a defence of such a reputation would result in a financial payout from the courts. The rule of law is all shot to hell – even the elite within the judiciary do not seem to understand what the rule of law is or means.

    The chief justice isn’t going anywhere… He has just another two years to go until retirement with full benefits. Does anyone think that he is willing to give that up? I don’t. I predict that unless he is forced out, he will dig in like an Alabama tick on a hound dog, and suck away.

    In the meantime, the issue is not political as much as it is harmful to the judiciary and the deliverance of justice to the thousands of people depending on a Fair and impartial court system.It is without doubt now that there is a stain which will be difficult to remove for years to come, all because the chief justice and the judicial and legal services commission did not pay attention to their responsibilities in vetting these three persons for higher office. The result is that two of the persons have questionable backgrounds, made public subsequent to their appointments.

  7. The judicary is in a mess; far too many unsavory characters fronting as men of the law. Trinidad and Tobago is being held at ransome by persons who have no love of country but love of self and will do anything deemed necessary to get where they want to be.

  8. Public officials in Trinidad and Tobago belive they have a divine right to sit in the positions of authority they occupy. Humility is not one of their better attributes

  9. Daly seem oblivious to the fact that he has lent legitimacy to this farce, he want an apology, does he know what Ramdeen and Co wants and why? They want blood and we have to really try to figure out the real reason for this. They have been anti Archie from the get go, from too much travel to new court rules.
    All the morality police come out in force, the system in a mess and suddenly Archie is responsible, there are persons who thrive on the sick legal system and want it to stay that way, every appearance and postponement is a pay day for them. Inciting remand prisoners to riot and call in to media with prepared statements. Who are the big criminal attorneys representing the majority of remand prisoners, media practitioners need to dig deep and not just interview the same talking heads all the time.
    There is so much politics and race in this it’s not even funny, but everyone pretending to be ojectively blind to it.. please open your eyes..

  10. All that for a sorry, steups, so much messed up in this country but all this bachanal for Archie to eat humble pie…

  11. The President must reisign too

    • I agree the president should resign, But not for this matter. He was a mere figurehead in making the appointment and had no choice once the recommendation was made by the judicial and legal services commission. However, in the matter of the housing allowance, I don’t believe that he has a leg to stand on and for that reason ought not to have been in office this long.

  12. Some one is hiding the real truth. An most of u Know the truth.hmmmmm

  13. Stand strong CJ,they want to run a black man out of office i say NO WAY!!!!

  14. The institutions in this country collapsed long ago whether it’s the police the law the public service,all of them a total waste of time

  15. Trinidad and Tobago don’t have a history of public figures accepting responsibility for any wrong doing or , negligence and resign from their positions , never happened , never will .

  16. I guess some people judge everybody by their standard..ent Savitri Maharaj…

  17. The Judiciary are the people who enjoy the best Trinidad has to offer – across the board – and it is not duly bothered. Opposition and Government comprise the judiciary. Us lesser mortals can only be awed and amused by the $ played around in it and the disregard for the unfortunate citizens who crosses Madame Justice line. Elephants fight and ants die.

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