Daly Bread: Sabbatical or tactical? A look at Archie’s controversial leave and section 137

In a column published on 17 December 2017, I foretold that there was a political sub-plot by means of which Chief Justice Archie would be given a soft landing in March 2018.

At that time, I also referred to talk that the Chief Justice would be going on extended leave in March 2018 and to a report to that effect in a daily newspaper. I specifically asked: Who will grant such leave and on what credible grounds?

My prophesy is now a reality. The outgoing President of the Republic has purported to grant to the Chief Justice sabbatical leave of six months. An exchange of correspondence between the Chief Justice and the President is now in the public domain; but there is still no clarity as to by reference to what law or settled arrangements the President “approved” the purported sabbatical.

Last Friday’s media release from the Judiciary does not justify the purported grant of leave at all, let alone explain how the President got into this.

It plainly acknowledges that sabbatical leave for judges was an “agreement in principle” subject to “the development of administrative arrangements to give effect to the facility.” Even after a committee was appointed to deal with this, it remained, as the media release admits, an agreement in principle.

How, therefore, did the President become the authority to grant the leave facility to the Chief Justice?

Moreover, is Cabinet approval required for the carrying forward of recommendations of the Salaries Review Commission? If so, where is it?

The Office of the Prime Minister says he knew nothing about the granting of the sabbatical until last week but, curiously, the President of the Industrial Court, Mrs Deborah Thomas-Felix, knew of the Chief Justice’s plan to take a sabbatical since November last year.

The dealings between the President of the Republic and the Chief Justice seem clandestine and both gentlemen may have put themselves out on a shaky limb.

We must be thankful that the Government has woken up to the reality of what has been happening with the office of the Chief Justice.

It is deeply regrettable, however, that the Government was not alert and knowledgeable when the Attorney General was unwisely saying that the threshold for an independent enquiry under section 137 of the Constitution had not been crossed when the allegations that the Chief Justice may have used his office to obtain preferential treatment for third parties came into the public domain.

Does the Government now regret giving such a bligh?

There are other suspicious circumstances surrounding the sabbatical. The documentation in the public domain represents that the President of the Industrial Court is one of the supervisors of a project in which the Chief Justice will be involved during his purported sabbatical at the Federal Judicial Centre in Washington.

In a commendable demonstration of what accountability and keeping public trust means, the President of the Industrial Court promptly told us that she was unaware that she was to be the Chief Justice’s supervisor. Therefore, there may also be an element of misrepresentation about what are the arrangements and purpose of the purported sabbatical.

In much the same way that town knew that the sabbatical was coming, town also knows that it is super-convenient for the sabbatical to begin before the Chief Justice would be obliged to be present to administer the oath of office to President-elect Paula Mae Weekes.

Town is asking whether her relationship with the Chief Justice when she was on the Court of Appeal bench was really an “excellent” one?

Given the circumstances of the purported grant of the sabbatical, it looks less like a genuine sabbatical and more like a contrivance and a tactical retreat intended to give a fig leaf of respectability to the flight of the Chief Justice from the consequences of bad management of the judicial appointments process and the only partially answered allegations of questionable conduct.

The commencement of the sabbatical has been briefly deferred by mutual agreement for more discussion. Now that the Government has woken up, will it have the necessary nerve and statecraft to hardball Archie?

Will it, if necessary, reconsider its position on the use of section 137?

Editor’s Note: Release from Office of the Prime Minister on 13 March 2018:

In response to the letter of March 7th from Prime Minister Dr the Honourable Keith Rowley to His Excellency President Anthony Carmona requesting an explanation of the authority by which the President has purportedly granted sabbatical leave to the Chief Justice, Mr. Ivor Archie, the President has responded reaffirming his decision.

The Honourable Prime Minister is examining the situation and will report to the country in short order.

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