“When a Minister (or Prime Minister) is asked to exercise his discretion to establish an inquiry (as you are being asked to do), he ‘must do so in a manner that conforms to basic public law principles of reasonableness and due consideration of relevant matters’.
“There is a duty to provide ‘an informed and reasoned decision’, including publicly justifying why an inquiry will not take place” if that is ultimately what you decide.”
The following Letter to the Editor calling on Prime Minister Dr Keith Rowley to trigger an investigation into Chief Justice Ivor Archie was submitted to Wired868 by Mohan Ramcharan:
Dear Prime Minister Keith Rowley,
I am returning to the issue of an investigation into the behaviour of the Chief Justice (CJ) Ivor Archie, necessary for at least two reasons:
- Regarding his supposed attempts to use his influence to obtain Housing Development Corporation (HDC) homes for persons who paid his friend, Kern Romero who promised that he (Romero) could get the “CJ to intercede with the HDC on their behalf.”
Don’t forget that Romero is a convicted fraudster who has used the name and office of the CJ in furthering his fraudulent activities. By extension, the Offices of Chairman of the Judicial and Legal Services Commission (JLSC), and the Head of the Bar—positions held by Archie—are equally tainted.
- The promotion and subsequent ‘termination’ of the former Chief Magistrate (CM) Marcia Ayers-Caesar. One still wonders which one of the Offices the CJ holds is responsible for that fiasco; CJ, Chairman of the JLSC acting on behalf of the JLSC, or Head of the Bar? Let’s leave aside at the moment the issue of whether he tried to influence judges to “change their state-provided personal security in favour of a private company with which his close friend, Mr Dillian Johnson, a convicted felon, was associated.”
For the resultant morass of judicial decay to be fully understood, an all-encompassing investigation into the behaviour of the CJ in office must be transparently done.
Sir, your responsibilities as Prime Minister must rise above party politics and party affiliations. You cannot, as Prime Minister, play to partisan politics favouring the PNM and its members. Tribal loyalty aside, you have a duty to trigger an investigation for the following reasons:
- establishing the facts;
- ensuring accountability, identifying wrongdoing, blameworthy conduct and culpability;
- learning lessons;
- restoring public confidence (in a public authority or the Government);
- providing an opportunity for catharsis, reconciliation and resolution;
- (in some cases) developing policy or legislation to prevent similar occurrences;
- To ensure the rights of those individuals involved are recognised and respected for the right reasons. (adapted from Hill, H. QC)
Note that I said you have a duty to trigger an investigation. I use the phrase ‘trigger an investigation’ because the process is clear: you must use section 137 of the Constitution to begin the correct procedure. This is more than an obligation; it has been emphasised at the Judicial Committee of the Privy Council (JCPC) in Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago)  UKPC 57, at paragraph 27 Lord Bingham clearly says:
“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.” [Emphasis added].
When a Minister (or Prime Minister) is asked to exercise his discretion to establish an inquiry (as you are being asked to do), he “must do so in a manner that conforms to basic public law principles of reasonableness and due consideration of relevant matters.”
There is a duty to provide “an informed and reasoned decision,” including publicly justifying why an inquiry will not take place” if that is ultimately what you decide.
In other words, whether you decide to trigger section 137 to begin an investigation into the CJ’s behaviour in office, or not, you need to justify your decision. That justification must be rooted in law.
Bear in mind that in Archie’s challenge to the Law Association, the JCPC endorsed the Court of Appeal:
“The allegations had such a negative impact upon the office of the Chief Justice and the judiciary that they threatened to undermine the administration of justice and the rule of law.”
I do note that there is now in the public domain, allegations that the CJ made representations to yourself in some of the mentioned matters. This is a worrisome development and is necessarily demanding that an inquiry be held if only to clear any smears on your name and indeed, office.
Your apathy on this issue is not worthy of a leader of a nation. Your duty is clear. You have a discretion, but that discretion has an overriding duty in this particular instance—to refer the CJ to the President so that he may be investigated with an aim to establish innocence or guilt, regarding misbehaviour in office.
You may not fetter your discretion by refusing to refer this matter. Any fettering is itself an unreasonable position, in light of the seriousness of the allegations, and in light of your own involvement.
Fettering of discretion is an important part of public law, and the basis of many judicial review claims, with good reason. Your adamant refusal to even consider section 137 is effectively a fetter upon the discretion granted to you by the Constitution and expressly forbidden by numerous case precedent.
Lord Reid in British Oxygen Co v Board of Trade  AC 610 said that an authority which is granted a discretion must not refuse to listen at all, which is effectively what you are doing by your stance of ‘non-interference in judicial matters’.
“A decision that is the product of a fettered discretion must per se be unreasonable.” (Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299).
The above basically means you no longer have a choice in how you deal with this matter.