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Daly Bread: Break-ins, break-outs and Govt’s blunder of appeasement

This troubled Sunday morning, let’s view the continuing Chief Justice saga through the prism of Watergate.

On 22 July 1973, the headline on the front page of the Washington was ‘Nixon sees witch-hunt.’

At that time, the now famed Washington Post reporters, Bob Woodward and Carl Bernstein, were actively pursuing the implications of the Watergate break-in.

Photo: Then US President Richard Nixon tries to survive the Watergate scandal.

On 17 June 1972, a year before Nixon’s claim of witch-hunt, the Watergate scandal had begun when seven persons were arrested for a break-in at the offices of the Democratic National Committee in the Watergate complex.

Richard Nixon was at the time the President of the United States. Although he was not directly involved in the break-in, he later directed an attempted cover-up of the break-in and related activities.

On 5 August 1974, a year after Nixon’s witch-hunt allegation, the United States Supreme Court decided that Nixon could not use executive privilege as a reason to refuse to release tape recordings made in his office, which were relevant to the criminal trials of his officials who were involved in Watergate.

Nixon then released the tapes, which revealed his abuse of power in attempting to interfere with the Unites States electoral and justice systems. In the face of certain impeachment, he resigned from the Presidency on 8 August 1974.

The combination of robust journalism, public pressure and deliberations of the Courts constitute the essential elements of a functioning democracy. As a result of the functioning of these elements, a little over two years from the original offence, Nixon was forced to resign.

Two of these elements are currently at work in connection with events surrounding the office of Chief Justice Ivor Archie. They are robust journalism and a court process, currently adjudicating upon action taken by the Law Association directed towards influencing whether section 137 of the Constitution should be triggered to impeach Archie.

Photo: Chief Justice Ivor Archie, facing possible action under section 137.

The third element, public pressure, has been seriously undermined by the initial utterances of the Government, giving Archie a bligh regarding section 137 and therefore a feeling of invulnerability.

As the allegations against the Chief Justice mounted, the Attorney General asserted “nor have we seen anything to trigger 137 pursuant to the Constitution.” Section 137 is the constitutional provision relevant to impeachment of the Chief Justice.

This was a blunder of appeasement. The Attorney General should have kept the section 137 card close to his chest, thereby not giving the Chief Justice any feeling of invulnerability. The giving of that bligh may return to haunt the Government.

In a front page editorial on Wednesday last, the Trinidad Guardian made this statement: “We shouldn’t have reached this constitutional mess and, quite bluntly, we deserve better from those supposedly capable of holding high offices.”

However, here is the problem: We expect better from our rulers but most of so-called civil society routinely stays silent or appeases the blunders of the rulers, who blunder on until we have a “mess,” which is usually the result of appeasement and a lack of public pressure.

Meanwhile, the Chief Justice, through contrivances of sabbatical leave and arguably inflated and self-serving claims for sudden vacation leave, has been desperately seeking a fully paid break-out from the damaging controversies of his own making and for which he refuses to account—a refusal made easy by a lack of public pressure, except from a few of our fearless voices.

It is the appeasers among us who have enabled Archie, in the words of the editorial, “to choose silence and a convenient study break.” The blindness of those who make only tribally influenced assessments is also a significant factor in enabling dysfunctional acts in public life.

Photo: Trinidad and Tobago Prime Minister Dr Keith Rowley (centre) speaks in Parliament flanked by acting Prime Minister Colm Imbert (right) and Attorney General Faris Al-Rawi.  (Copyright Parliament.Org)

From his statement on Thursday last, it is not clear if the Prime Minister has now been driven to considering whether to trigger section 137 but the the behaviour of the Chief Justice certainly has his attention.

The outcome of the Law Association’s appeal, to be heard in a month’s time, against circumscription of its actions regarding the allegations surrounding the Chief Justice may be critical in assisting the Prime Minister in his decision making if he is still wavering.

About Martin Daly

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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33 comments

  1. “—a refusal made easy by a lack of public pressure, except from a few of our fearless voices.”

    So Daly styles himself a ‘fearless’ crusader then? Steups.

  2. “Robust Journalism.” Lmfao. Seriously Wired. Is this the new euphemism for what passes as journalism locally.

    I’m just thankful that we now have a more educated and enlightened citizenry who no longer absorbs the garbage spewed from so-called professionals /mercenaries like Daly, Khan et al. More people think for themselves and no longer depend upon these people with agendas who are published by others with similar agendas.
    The terminology killed me though – “Robust Journalism” ha ha

  3. Regarding the editorial headline I am alive to the colloquialism alluded to and the general atmosphere and context of the allegations, And frankly Rowley should have the cojones to do the right thing and invoke the constitution.

  4. The moment you invoke Watergate I know it’s going to be nonsense thereafter.

    • I just can’t make the connection of Watergate and what’s happening with the CJ. Why link the two?

    • These people comprise of the law association. Lord help us all.

    • It’s a ridiculously lazy comparison with the hope that readers are more knowledgeable of the term ‘Watergate’ than what actually obtained during that investigation.
      For years we have had to put up with Daly’s musings and we’ve had to accept them as enlightened and thoughtful simply because it’s Daly.
      Honestly I don’t know what makes Daly so special. It certainly isn’t his weekly column.

    • They really want that man gone by any means necessary.

    • Perhaps the reference to Watergate is not about the outcome of Watergate but the process that lead to the outcome. The outcome of Watergate was not as a result of purely Government involvement but because of journalists and the public asking questions. In the CJ’s case the feeling of some is that no one but the Office of the Prime Minister must ask questions.

  5. Please remind the country of President Nixon was impeached and then make the connection.

    • ” Facts do not cease to exist because they are ignored ” … Huxley. Nixon was never impeached, he resigned so there are no records of Impeacment hearings.

  6. Bunch of jokers. Still fixated on the CJ while white color criminals walk amongst them. Sweet sweet T&T.

  7. Dear Editor : If by treading very carefully as they respond to the CJ’s actions, the politicians in power have given him a “bligh” that allows him to think he can continue to act with impunity he will eventually self-destruct since my wise old ancestors asserted that ” a long rope for magga goat” is always preferred to a ” fools rush in ” hasty response. After the Sharma CJ mis-adventure we should always proceed as the Vietnamese did after their 1968 Tet offensive ” … step by step, in a judicious manner”.
    By Daly’s own time-line it took the great US bastion of demcracy approx. 2 years to make Nixon account for his criminal actions re: Watergate.

  8. 1) An investigative journalist, asks questions about a CJ, compiles information then publishes his article. The contents of it gets the PM’s attention and the PM triggers (or does not) section 137 of the Constitution.

    2) The LATT asks questions about the CJ, compiles information then presents a report to the PM. The PM triggers (or does not) section 137 of the Constitution.

    3) An investigative journalist, asks questions about a resident of TnT, compiles information then publishes his article. The contents of it gets the CoP’s attention and the CoP orders a police investigation (or does not).

    There is no law empowering a journalist to investigate the CJ or anyone else. (correct if I am wrong here).

    According to Justice Kangaloo and some members of the public 2) cannot be done.

    What are their views on 1) and 3)?

    • In law, only the State is forbidden from doing something unless it is expressly permitted. Citizens can do anything that is not expressly forbidden. Different rules apply. So ANYBODY could investigate the CJ, but only the PM can trigger section 137. However, the Privy Council said that once there is ” a potentially credible report of serious misconduct by the Chief Justice” the PM has a duty to act and cannot simply ignore it …

      I wonder if someone could now press for a judicial review of the PM for failure to act…

      • Well Jumbie, it appears you are saying that nothing is wrong with 1) and 3). And I assume you also say that 2) is correct and thus Kangaloo, J erred in law. (“ANYBODY could investigate the CJ”)

        But I would like to hear from those who oppose 2). Whether they believe that 1) and 3) are also wrong.

  9. Further, I place no reliance on the Court of Appeal, I predict that they do no more than endorse what Justice Kangaloo has ruled perhaps with some refinements, that the Law Association is entitled to complain to the PM to invoke s137 but without any complusion for Archie to respond to the entreaties of the LATT. In my view the constitution has an all or nothing formulation regarding judges. Its either one removes them or leave them alone. Other places have a modality of responses to wrongdoing by judges from reprimand suspension early retirement demotion to outright removal.

  10. “the court was, however, right to say that if the Prime Minister received a potentially credible report of serious misconduct by the Chief Justice he had a duty to act and could not simply ignore it:

    “What he cannot do is seek to influence the process once he refers it for investigation or action. One therefore has to examine [the Prime Minister’s] conduct, that of the person exercising the prosecutorial discretion and any other relevant evidence to see whether there is an arguable case that such interference has in fact taken place. That is the proper approach.”
    [Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago) [2006] UKPC 57, para 27]

    The law is clear: If the Prime Minister receives a POTENTIALLY credible report of serious misconduct by the CJ, he has a DUTY to act and cannot ignore it.

  11. The problem is that not many people can or will appreciate the legal situation that the CJ has put the country in. I can see that from the comments that are submitted here and on the websites of various newspapers. Ignorance of the law and tribal loyalty are but two observable factors why the country faces stagnation, international shame, and a Constitutional crisis.

  12. The media and certain legal luminaries are over reaching on this issue. As I told someone in the media last week, it is coming off like persecution rather than prosecution of legitimate issues. Hence the lack of public pressure as stated by Martin Daly. Because many take the view “Leave the CJ alone”. In my view, the media and silk and LATT “over reach” is what is damaging the independence of the Judiciary, and not Archie’s alleged indiscretions. The Constitution provides a means for dealing with such issues. It does not include trying to “shame the CJ out of office” which appears to be the modus operandi as was stated by SC Israel Khan. Former PM Manning triggered Section 137 for an allegation made by the then Chief Magistrate over conspiracy to pervert the course of public justice. That was a serious issue related to the performance of then CJ Sharma job function. That was a very high bar to cross. So I agree with the AG that nothing so far has reached anywhere close to that bar to trigger Section 137. I also agree with PM Dr Rowley not taking any “chain up” on this matter, even from silks who seem to have taken as their new mission getting CJ Archie out of office.

    • Lasana Liburd, there was public pressure on Jack Warner. However u don’t agree that the two situations are at all comparable.

    • Hayden they are not at all comparable. But public reaction is no gauge at all. There is public reaction in both sides. And there is indifference by a fair portion of the country on both sides too.
      Unless you are wielding a mask and toting a gun, a lot of people won’t be convinced that you’re too bad.
      Doesn’t matter. What is right and wrong doesn’t change based on whether people are carrying placards or not.

    • I dare say 53 persons who are screwed over by Archie with regard to the Marcia Ayers-Caesar fiasco will disagree with you.

    • I agree, Lasana Liburd, public opinion may in certain circumstances play a role in exerting pressure in some cases, but it is certainly no gold standard in determining many issues. There are so many twists and turns in the Archie saga or debacle that it is hard for the average lay person to keep up far correlate it to the constitutional issues. To many, the issue is whether Ian Alleyne was right tio follow Archie to the restaurant where he was dining with a friend. Many will be sympathetic to the plight of someone securing a state aided house and overlook if they see at all, the errancy of the chief justice seeking favours for shelter of the needy. Many see the issue of a black man being hounded by the faceless and often inconsistent Law Association. Many will think its piddling if the chief justice seeks to go on a sabbatical or if he takes his leave, never mind black letter law or policy. Perhaps those who pray in aid public policy may well remember the words of Justice Borrough ( Richardson v. Mellish) in adverting to public policy but apt here….”a very unruly horse, and when once you get astride it you never know where it will carry you”

    • Christopher what is that with Ian Alleyne? Wasn’t aware that the jester took a stab at this matter too.

    • The events with Archie may have well started when Mr. Alleyne with phone camera in tow followed Mr Archie and a friend into a restaurant at Grand Bazaar,where they were awaiting their orders and chatting . Mr Alleyne followed up this reportage with certain questions which Archie and friend (male, young) considered defamatory. The video of the encounter was displayed on Mr Alleyne’s show and on his youtube account. Legal letters were issued claiming defamation and breach of privacy as apparently video of Archie vehicles were included in the footage. The threats of legal action worked as the footage was subsequently removed from youtube. After that the deluge from D Express..

    • You won’t get public pressure on misbehavior that isn’t straightforward and easy for the man on the street to understand.
      There is no public pressure on Jack Warner either. So we should let him be?