“It cannot be that judges must have the confidence of the local bar and without it, they must resign and/or be impeached. In fact, the Law Association, by so ferociously attacking the chief justice, only risk damaging the office and its own credibility in tandem. If they were to succeed in implementing the section 137 procedures, serious damage will have been done to the independence of the judiciary and security of tenure—the building blocks that protect citizens from the whims and fancy of the politicians.
“Instead of focusing on impeachment proceedings, the Law Association ought to be working with the chief justice and his office on ways and means to improve the nation’s judiciary.”
The following commentary on the Law Association of Trinidad and Trinidad and Tobago’s proposed judicial review of the prime minister’s decision not to invoke section 137, which would initiate impeachment proceedings against Chief Justice Ivor Archie, was submitted to Wired868 by attorney-at-law Matthew GW Gayle:
This article is written against the backdrop of the meeting of the Law Association of Trinidad and Trinidad and Tobago Friday 27 September 2019, which discussed the possibility of judicially reviewing the prime minister’s decision not to invoke section 137 of the constitution of the Republic of Trinidad and Tobago—the first step of the three-stage process set out in the constitution for the removal of a senior judicial officer, in this case, the chief justice.
Here, I consider that the more poignant question is: who should judge the judges? I submit the answer is dependent on the circumstances.
One thing is clear, the chief justice must not resign, nor should the prime minister invoke section 137. While it is right that the Association let the view of its membership be known to the public, far more important root-and-branch issues require the level of zealous action now seemingly dominating the Association’s day-to-day. These issues might include decades-long pre-trial detention, continuing professional education for lawyers, and access to justice for the poor and underprivileged, to name three.
In court, the question of assessing the judge’s fairness and, frankly, suitability to hear cases assigned to her is first assessed by the judge herself, with the assistance of the attorneys-at-law for the parties. It is generally accepted throughout the region’s courts that the English law standard (Porter -and- Magill test) is to be applied to determine whether the ‘fair-minded and informed observer would conclude that there was a real possibility that the tribunal had been biased’. If so, the judge must go.
In practice, this means that challenges to the judge are usually brought to her attention by the lawyers, who then seek to persuade the judge concerned why the fair-minded and informed observer would deem recusal necessary or not as the case may be. Thereafter, the usual appeals to the court of appeal and judicial committee of the privy council follow.
Photo: Chief Justice Ivor Archie and high court judges at the start of 2017-2018 law term
But the question about the chief justice does not arise in the context of his judging. More fundamentally, the question is whether he is fit to hold the office of the head of the judiciary.
In law, the decision falls to the prime minister to decide whether the chief justice is fit to hold office. Locally and regionally, there have been several examples of political actors attempting to influence the decision to ‘impeach’ judges using this procedure. In this sense, the section 137 procedure is susceptible to the prime minister being keener to invoke proceedings against a judge whom he considers to be less aligned to his way of thinking. The inverse is also true.
Clearly the decision to invoke section 137 must remain open to challenge by judicial review proceedings. This remains an essential safeguard against a tyrannical judge being protected by nepotism and cronyism.
It goes without saying, no question has been raised by any of the country’s best legal minds suggesting that the chief justice is not a competent court of appeal judge. Quite the opposite. He has spent numerous years as a high court judge, court of appeal judge and now the country’s longest-serving post-independence chief justice.
The chief justice has presided over significant improvements in the judicial system. Achievements like the introduction and development of the Civil Proceedings Rules and associated strives in alternative dispute resolution; increased certainty of legal fees in contentious matters for users of the court; online probate searches; the introduction of Criminal Proceedings Rules and criminal court masters; and the children court immediately spring to mind.
Is there more work to be done? Clearly. Have all the new initiatives been seamless and issue free ab initio? No.
It is my thesis, however, that independence of the judiciary, and its corollary security of tenure, being paramount, require that the chief justice not heed calls to resign. The fact that the Law Association’s recommendation to the prime minister to commence proceedings is only part of the story.
The prime minister must only invoke section 137 in the gravest of circumstances. In the UK, following one of the most controversial court decisions in living memory of the divisional court, newspapers branded some of that country’s judges ‘enemies of the people’. Had a popular poll about the judges been taken of the British public following that decision, the judges would have been toast. This week, the supreme court crafted a route to reviewing parliamentary proceedings. Respectfully, far more far-reaching, long-lasting and systemic than any of the negative steps the chief justice has been criticized for.
But well-respected political conventions govern the official criticism that sitting judges receive. The political actors respect the rule that the judges are to be spared that breed of public criticism. Their fitness to judge is measured in terms of the critique they receive from higher courts.
It cannot be that judges must have the confidence of the local bar and without it, they must resign and/or be impeached. In fact, the Law Association, by so ferociously attacking the chief justice, only risk damaging the office and its own credibility in tandem. If they were to succeed in implementing the section 137 procedures, serious damage will have been done to the independence of the judiciary and security of tenure—the building blocks that protect citizens from the whims and fancy of the politicians.
Instead of focusing on impeachment proceedings, the Law Association ought to be working with the chief justice and his office on ways and means to improve the nation’s judiciary.
The office concentrates significant ceremonial, administrative and legal duties in one officeholder. The best administrative leader of the judiciary may not be the best ceremonial leader of the judiciary. The best legal mind may not be the best administrator of a huge and complex institution of the state. Furthermore, institutions generally function better when there is a tension of power at the top of the organization.
I stop short of suggesting that judges ought to judge judges, but the presence of a strong president of the court of appeal (the recognized ‘legal’ head of the judiciary), a president of the high court (recognized administrative leader of the judiciary) and a ceremonial leader in the office of chief justice working in concert would present a far more satisfactory and self-regulating institution. In such a system, one must consider that if two of the leadership trinity recommended impeachment proceedings, the circumstances would indeed be of the gravest nature, and the prime minister would immediately heed any call.
The writer starts off from a false premise, meanders through several speculative theories and misses the entire core of the Chief Justice issue. The question is not about “who will judge the judges?”. The question is whether the Chief Justice misbehaved in office. End of. Nothing should distract from this point. And to answer the question of whether he did misbehave in office, an investigation has to take place. The only way to trigger that investigation is through section 137. Therefore, the discretion the Prime Minister purports to exercise is not really a discretion at all. I have repeatedly said, in the seminal case of Sat Sharma, the Privy Council clearly stated that the Prime Minister had a “duty to act” as opposed to a discretion to act.
The question of who judges the judges will, therefore, be answered once an investigation takes place. The matter will be referred to an independent tribunal, who will in this instance, judge the Chief Justice, and recommend to the President whether he should be removed from office.
“More fundamentally, the question is whether he is fit to hold the office of the head of the judiciary.”
The writer clearly knows that this question is pertinent. But he misses the mark quite widely. The only way to determine whether the Chief Justice is fit to hold the office of the head of the judiciary is to clear his name via an independent investigation. This ought to be common sense by any standards.
I also note that by not triggering section 137, the Prime Minister is also protecting himself – there is prima facie evidence that there was some collusion between himself and the Chief Justice in the matter of leapfrogging applicants for government housing. A refusal to refer the matter under section 137, therefore, lies beyond the discretion of the Prime Minister in this instance. One would think that a man who had been hauled before the Integrity Commission and escaped on a technicality (because the IC did not give him an opportunity to defend the charges) would understand the nature of a fair assessment.
The writer’s wandering views into the public’s perception of the judges is a nonstarter of an argument, and not really an issue at all. The general public is ignorant of what most laws are, how they are applied, what legal theories and established doctrines of law are involved. Clearly, the public is in no position to judge judges.
Introducing the red herrings such as ceremonial functions as opposed to administrative functions of the CJ’s office ill befits someone who claims that he is legally trained.
The lesson to be learned from this clutter is that one should identify the core issue, and present arguments for or against that core issue, rather than railing about everything under the sun.
I wish I had understood what I just read.