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Dear Editor: Prime Minister Dr Rowley has duty to trigger investigation into Chief Justice

“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:

Photo: Prime Minister Dr Keith Rowley addresses the audience in his “Conversations with the Prime Minister” series.
(Copyright Office of the Prime Minister)

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:

  1. 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.
  2. 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:

Photo: Prime minister Dr Keith Rowley (centre) stands between his wife Sharon Rowley (far right) and Chief Justice Ivor Archie (far lefT) during the Independence Day Parade on 31 August 2018.
(Copyright Ministry of National Security)
  1. establishing the facts;
  2. ensuring accountability, identifying wrongdoing, blameworthy conduct and culpability;
  3. learning lessons;
  4. restoring public confidence (in a public authority or the Government);
  5. providing an opportunity for catharsis, reconciliation and resolution;
  6. (in some cases) developing policy or legislation to prevent similar occurrences;
  7. 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) [2006] 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.

Photo: President Paula-Mae Weekes (right) is applauded by Prime Minister Keith Rowley (centre) as Chief Justice Ivor Archie looks on.
(Courtesy Office of the President)

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.

Photo: Chief Justice and JLSC chairman Ivor Archie.

Lord Reid in British Oxygen Co v Board of Trade [1971] 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.

About Mohan Ramcharan

Mohan Ramcharan is a law student and a student of human nature and culture, who prefers cool logic to emotional ranting. A Trinidadian living in England, he observes the world through two lenses—and strives to share both views in his writing.

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53 comments

  1. Please describe WASA killings

  2. With respect, I disagree. There’s no duty to trigger an investigation per se.

  3. “According to documents obtained by Caribbean News Now, Trinidad police have reached out formally to officials in the United Kingdom through established diplomatic and police protocols and have requested that Johnson be sent back to Trinidad to answer questions in relations to both WASA murders, and have stated that Johnson is a fugitive and not an asylum seeker as their primary reason for him to be sent back to Trinidad.”

    https://www.caribbeannewsnow.com/2019/01/22/trinidad-chief-justices-alleged-gay-friend-back-in-the-news/

    • And that’s the homey of our Chief Justice…

    • More he say / she say and I “hear” this and she say that!

      So the LATT report apparently totally failed to trigger the PM so they’re back to “homey” as you put it.

      Anybody can go before a Commissioner of Affidavits and say whatever, especially for the right price. And to up the ante, throw in 2 WASA murders. Were the murders part of the news cycle before? “Caribbean News” breaking news stories out of Trinidad before our own local outlets?

      Gossip tabloid information to hound a man out of office apparently well orchestrated by the Opposition shadow minister of phonebooks according to Mr Thomas and others.

      Where are the leaked copies of the official police request etc to have Mr. Thomas returned to Trinidad to make this story even somewhat plausible?

      It is one thing to run with a story but to reduce media houses to tabloid status and gossip mongerers at the bidding of the opposition is just sad!

    • Ezra Joaquim you never heard that he was a person of interest in a murder case before?

    • I just googled it and found a story from last year of then acting CoP Williams stating same AFTER Johnson had applied for asylum. But was this already in the news BEFORE he fled to the UK?

    • Ezra from very early in Denyse Renne’s series, this was mentioned. You just missed it. So your lecture was off base there.
      The escalation is that now there seems to be grounds to charge. That’s all.
      Certainly not “tabloid gossip”.

    • In researching the timeline I realize that the Caribbean News story was simply rehashing the events from last year and not breaking a new story. The scans of the affidavits etc are old. It’s just cunningly reported as if happening now, keeping the story in current events. The only current event was that the UK government offered him protection last week.

      Of course you can say I read it wrong but then, so too will a lot of people which I guess is the actual intention.

      I still stand by my “lecture” though. All this is courtesy the shadow minister of phonebooks for political gain and the media played right into it! In granting Johnson protection how many news articles was referenced by the UK home office? After all this drama and sensationalism the CJ is still able to hold his ground… for now.

  4. The PM is to be moved one way or the other by the contents of the two reports not the LATT voter turn out.

  5. When people don’t realise they’ve lost and they need to quit.

  6. Clearly, most of the people commenting on this website are not particularly educated about the political/legal system in Trinidad and Tobago. It is possible that they are not even aware of the ethics of the situation. The Chief Justice has openly used his Office to influence the granting of houses to persons (whether those persons these so government housing or not is not material) recommended by his personal friend, who happens to be a convicted criminal and who accepted financial remuneration in a promise of the CJ intervening on their behalf to guarantee housing.

    I suggest that they read a bit more about the role of the Chief Justice, and what he can and cannot do.

    It matters not whether his recommendation was followed. The fact that he used his office/name is enough to constitute misbehaviour in public office… Which can constitute a criminal offence. The only way to know for sure whether or not this happened is to have an official investigation. People simply cannot understand this… It does not matter whether he is innocent or guilty at this point… What remains is to prove that he is innocent or guilty! And that cannot happen without an official investigation, which can only be triggered by section 137 of the Constitution!

    I think those who wish to condemn the writer (of this article) ought to at first educate themselves about the political/legal process before just throwing out criticisms willy-nilly! It is obvious that they do not know, and indeed, do not know that they do not know.

  7. My view of the LATT vote is that it does not reflect the view of their membership.

    My understanding is that the LATT has over 2,000 members yet the total number of people who voted was like 200.

    I agree that the majority who voted were in favour of the PM acting but less than 10% of your membership does not constitute a mandate from your membership!

    • When less than half of the population votes, isn’t the election of that candidate still valid?

    • Lasana Liburd i agree but the prime minister’s considerations are a lot more than just numerical. The low “voter input” may reflect several views one of which could simply be that the majority didn’t see this as passing the significance test

    • Lasana Liburd the LATT has stated that they have a mandate from their membership!

      If you have an election to decide something and less than 10% of your membership could be bothered to attend and cast a vote that to me suggests that the majority of the membership doesn’t agree with the initiative.

      An election of a candidate is a totally different situation!

    • Nigel in no way does the absence of the membership say they don’t agree with the initiative. To me it says they don’t care.
      If they cared one way or the other, they would go and vote.
      The people in the Law Association who care have given their opinions.

    • Lasana but in the context of the bigger national interest, and given their implied professional responsibility, ‘don’t care’ and ‘don’t agree’ bear similar meanings and outcomes?

    • Brian not in my books. If you don’t agree, then you care. If you really don’t agree with Donald Trump as president would you stay home on election day?

    • Steups Nigel Noel
      Not every disagreement or retort warrants an argument or even a response. Sometimes it’s best to agree to disagree or simply leave things alone, or disengage. People will always have differing views and differing perspectives, but not an entitlement to compel your engagement.

    • Christopher Lewis this is a discussion forum and that’s what I thought I was doing.

    • Lasana Liburd the LATT has tried to make it seem that the majority of lawyers in Trinidad have lost confidence in the CJ. This is untrue only about 150 lawyers have lost confidence in the CJ, which to me should not be enough to convince the PM or any other public official to act on the sole basis of that vote!

    • Lasana that’s good logic but what have we seen in TT elections recently with people staying away etc.? the trump question is a good juxtaposition – but Americans won’t stay home, Trinis will – I believe. But if the lawyers don’t agree and they do care (and that makes sense), are we to infer that they don’t agree that this rises to the threshold of important? If the answer is yes, the PM might be best served dropping this and getting into more important matters. It then says something about the judgement of LATT leadership

    • So the Prime Minister would say: LATT came to a conclusion but because of the low turnout and my speculation about what that low turnout might mean, I will ignore it…
      If so, that thinking would trouble me too.

    • Lasana I’m not suggesting that it will be as simple as that but it has to be a concern. It certainly concerned me. I really thought that this matter had wider and deeper contemplation so was shocked when we heard the outcome. This definitely has the feel of a witch hunt of the few. Let’s see where it goes

    • Brian, the low turnout does concern me. But I’m more interested in the merit of the thing as opposed to how popular it is.

    • Lasana popularity is not my concern and far from it. But if only 182/2000 think it worthwhile to consider, debate and vote…….. hmmmmm how can I take that to the bank ?

    • Brian i believe people think more and more about individual needs and less about the collective. And they struggle to see the link between the two.
      LATT is no exception.
      There is probably less than 10 percent of the media paying any mind to cyberlaw legislation that could have a significant impact on the way we do our jobs.
      Does that mean the AG would be right to ignore the presentations by MATT? I’d say, emphatically, no.

    • Nigel the majority of lawyers who wished to register their view have no confidence in the CJ.
      Doh give me a Suruj Rambachan poll there where you decide what the people who didn’t take part were actually feeling. Lol.

    • Nigel Noel Most organisations have a quorum before a vote is ‘legal’. Does LATT have that provision?

    • Judy-ann and if they did, no quorum would be necessary for reconvened meeting even if two people showed up.
      Point is low turnout does not invalidate an election result.

    • Lasana Liburd Sometimes you still need a certain number to make decisions valid, depending on the kind of decision you are making. Look at company AGMs for example. I guess, as attorneys, they would know their own business best.

    • Judy-ann Stewart that’s true. But it depends on what is on the agenda. The only matter which MUST have a quorum in the TTFA constitution (which is patterned after FIFA’s) is a constitutional amendment.

    • Judy-ann Stewart i have no clue

  8. Reminder to regular posters like Kyon Esdelle, Ezra Joaquim, etc…You have to authorize Facebook to put your ID on comments that are pulled on to website by following these instructions…
    If you click on story link and scroll to comments, you’d immediately see difference in presentation between the members who have already done so and those who have not.

  9. One interesting facet of social media is the unearthing of armchair legal luminaries and armchair ethicists. Mohan is both, I guess. The only responsibility the PM has at the moment is to be calm, careful, get good legal and constitutional advice and above all be fair. The process suggested in this letter is flawed and certainly don’t reflect a real understanding of the constitutional process

    • Chief, could you point out the the flaws in his process?

    • Brian Harry I tell you social media bring out all the pseudo lawyers and arm chair critics

      • Since the writer is described as a ‘law student’, it is quite possible that he knows what he is talking about. The evidence for his argument is included in his analysis; unlike those persons who give opinions without the benefit of an intelligent argument, much less evidence, like for instance, Brian Harry.

        Isn’t it ironic that Harry is doing the same thing he accuses the writer of doing? Except that there is no evidence that the writer did what he is being accused of… on the contrary, he actually made an effort to present a coherent argument for his position.

  10. The Prime Minister’s duty is well documented under the constitution of our republic. A constitution that does not include the Law association of Trinidad & Tobago. Nobody solicited a report from the LATT and thus the Prime Minister is not duty bound to respond to such report. He can, if he so choose but is certainly not duty bound to do so! As such, the PM is not obligated to respond or act on the findings of the LATT report and thus has no constitutional duty to act on said report.

  11. Kyon Esdelle CJ is in charge of All ongoing criminal investigations. A letter to the editor asserting the PMs discretion is being fettered when orchestrated attempts to bring the CJ into disrepute fail, is itself an attempt to fetter the office of the CJ in the performance of his duties. We want the CJ to be constutionally independent enough to preside over ongoing prosecutions

  12. Another attempt to derail ongoing criminal investigations?