“The Prime Minister’s decision to refer, or not refer, allegations to the President—who in turn is constitutionally charged with appointing a tribunal to formally investigate such allegations—is itself an intrusion into judicial independence and the usual separation of powers.
“To then have a Court review the Prime Minister’s exercise of his discretion would then further intrude into the separation of powers. It would be a conceptual mess.”
The following column on Prime Minister Dr Keith Rowley’s decision not to refer Chief Justice Ivor Archie to a tribunal was submitted by barrister and attorney-at-law Dr Emir Crowne:
Last week during a post-Cabinet press briefing the Prime Minister indicated that he would not be referring the Law Association of Trinidad and Tobago’s (LATT’s) report and findings against the Honourable Chief Justice to the President. The Prime Minister formally advised the LATT of that decision yesterday. In my view, the Prime Minister acted fairly, reasonably and dispassionately in the circumstances.
As a preliminary matter, I will indicate that I voted against referring the LATT’s report to the Prime Minister in the first place. As I saw it, the LATT’s report contained matters and allegations that were already in the public domain. There was nothing new contained in the report, save for certain ‘findings’ that were made against the Chief Justice in that report.
Those ‘findings’, in my view, could not be relied upon as they were either based on hearsay or double hearsay. As a matter of principle, therefore, I could not support the referral of such a report to the Prime Minister.
Turning to present events. The call by some senior members of the bar to judicially review the decision of the Prime Minister is, with respect, perplexing and fraught with difficulties.
First, even if a challenge were successfully mounted against the Prime Minister’s decision, it would mean that a Court itself would be ordering that the matter be referred to the President. I am not sure this was the path envisioned in the Constitution with respect to allegations of misconduct levied against a sitting Chief Justice. It would be an unusual and twisted intrusion into the usual separation of powers.
The Prime Minister’s decision to refer, or not refer, allegations to the President—who in turn is constitutionally charged with appointing a tribunal to formally investigate such allegations—is itself an intrusion into judicial independence and the usual separation of powers. To then have a Court review the Prime Minister’s exercise of his discretion would then further intrude into the separation of powers. It would be a conceptual mess.
Second, to succeed on judicial review, one would have to demonstrate that the Prime Minister’s discretion was exercised unreasonably. This is an impossible task in my view. The Prime Minister sought legal advice on the matter and relied on that advice in forming the basis for his decision.
It would be a bit of doublespeak for the LATT or senior members of the bar to argue that such reliance was unreasonable. (One need only recall that the LATT itself sought two legal opinions with respect to the path forward).
In the end, we must not let oblique agendas dominate the discussion around this matter. During the LATT’s meeting in December it was clear to me that merit and principle had given way to such agendas. The same is true today.
Judicial independence can only be safeguarded when we approach matters of judicial discipline fairly and objectively. An agenda-laden discourse only serves to undermine the administration of justice, not strengthen it.