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Crowne: Archie, the Privy Council, the Law Association and the way forward…

“On 11 December, a Special General Meeting has been convened to […] ‘consider the report of the Committee established to look into the allegations made against the Honourable Chief Justice and to direct Council as to the next steps, if any, which should be taken’—including a possible referral to the Prime Minister.”

The following Letter to the Editor on an upcoming LATT meeting to discuss the conduct of Chief Justice Ivor Archie was submitted to Wired868 by barrister and attorney-at-law, Dr Emir Crowne:

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

On 16 August, 2018 the Privy Council released their decision in Archie v The Law Association of Trinidad and Tobago, [2018] UKPC 23. The decision was widely reported in the local media. However, in light of the Law Association of Trinidad & Tobago’s upcoming Special General Meeting, the decision is further analysed below.

In late 2017 the Express published certain articles that, on their face, contained damming allegations against the Honourable Chief Justice. The articles “alleged that the Chief Justice had tried to influence Supreme Court Justices to change their state-provided personal security in favour of a private company with which his close friend, Mr Dillian Johnson, a convicted felon” ([2018] UKPC 23 at paragraph 3) and that Mr Johnson was also among the list of 12 individuals recommended by the Honourable Chief Justice for HDC units ([2018] UKPC 23 at paragraph 3).

The Honourable Chief Justice is also alleged to have communicated with a senior HDC official to fast track the applications for said units.

In November 2017, the Law Association determined that the allegations were “sufficiently grave” as to warrant further investigation, and an internal committee was struck for that purpose.

Between November 2017 and February 2018, there were intervening communications and meetings between the Honourable Chief Justice and senior members of the Law Association. Then on “21 February, a pre-action protocol letter asked the LATT to take no further steps until the court had pronounced upon the legal and constitutional propriety of its investigation. By letter dated 23 February, the LATT by its attorneys rejected that suggestion and stated that it had decided to proceed with its investigation…” ([2018] UKPC 23 at paragraph 12).

Photo: Law Association of Trinidad and Tobago (LATT) president Douglas Mendes SC.
(Copyright Trinidad Guardian)

The Honourable Chief Justice then sought to judicially review the Law Association’s actions and purported powers. At first instance Justice Kangaloo held that the Law Association’s decision to “continue the investigation was “illegal and/or ultra vires and/or unreasonable and/or irrational and/or contrary to the provisions of the Legal Profession Act” and quashed it” ([2018] UKPC 23 at paragraph 14).

On appeal to the Court of Appeal, a unanimous Court found for the Law Association. The Court disagreed that section 137 of Trinidad and Tobago’s Constitution (discussed below) constrained the Law Association’s ability to investigate the Honourable Chief Justice, nor was the Law Association’s investigation ultra vires of its powers under the Legal Profession Act ([2018] UKPC 23 at paragraph 15).

The Privy Council, in turn, upheld the Court of Appeal’s ruling.

Section 137 of Trinidad and Tobago’s Constitution sets out the procedure to discipline and, if warranted, remove a Judge or Chief Justice. Sub-section 137 (3) in particular provides that:

“Where the Prime Minister, in the case of the Chief Justice, or the Judicial and Legal Service Commission, in the case of a Judge other than the Chief Justice, represents to the President that the question of removing a Judge under this section ought to be investigated, then:

(a) the President shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected by the President acting in accordance with the advice of the Prime Minister in the case of the Chief Justice, or the Prime Minister after consultation with the Judicial and Legal Service Commission in the case of a Judge, from among persons who hold or have held office as a Judge of a Court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a Court having jurisdiction in appeals from any such Court;

Photo: President Paula-Mae Weekes (right) addresses Chief Justice Ivor Archie during her inauguration ceremony at NAPA on 19 March 2018.
(Copyright Office of the President)

(b) the tribunal shall enquire into the matter and report on the facts thereof to the President and recommend to the President whether he should refer the question of removal of that Judge from office to the Judicial Committee; and

(c) where the tribunal so recommends, the President shall refer the question accordingly.”

Essentially, that sub-section (and the entirety of section 137) ensures that judicial independence is safeguarded against an over zealous government. In the words of Lady Hale:

“Judicial independence is secured in a number of ways, but principally by providing for security of tenure: in particular this requires that a judge may only be removed from office, or otherwise penalised, for inability or misbehaviour and not because the government does not like the decisions which he or she makes. It is also required that removal from office should be in accordance with a procedure which guarantees fairness and the independence of the decision-makers from government.” ([2018] UKPC 23 at paragraph 18).

The Privy Council agreed with the Court of Appeal that the constitutional procedure set out in section 137 was certainly not the only way a judge could be investigated. Indeed, a judge may well be investigated by the media, individual citizens, or professional bodies like the Law Association ([2018] UKPC 23 at paragraphs 27 – 31).

However, any such investigation by the Law Association, while not governed by the “conventional rules of natural justice”, must still be conducted “fairly” (the standards of which “vary enormously”) ([2018] UKPC 23 at paragraphs 24, 38 and 39).

Photo: Chief Justice and JLSC chairman Ivor Archie.

That said, although the Law Association may be empowered to investigate the Honourable Chief Justice, it “is in no position to make findings of fact which are in any way binding upon the Chief Justice or upon any tribunal which might be established under section 137” ([2018] UKPC 23 at paragraph 24).

The findings of that investigation, and legal opinions concerning same, are currently available for review by the Law Association’s membership. On 11 December, a Special General Meeting has been convened to discuss same.

More specifically, as the Law Association put it, to “consider the report of the Committee established to look into the allegations made against the Honourable Chief Justice and to direct Council as to the next steps, if any, which should be taken”—including a possible referral to the Prime Minister.

Whatever the outcome of that vote, the events that have led us to this point are nothing short of extraordinary. Whether or not the Law Association should refer allegations of misconduct against a sitting Chief Justice to the Prime Minister is equally exceptional.

The Law Association’s membership is therefore urged to reflect upon the gravity of the vote before them and exercise their choice judiciously.

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