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“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:
(Copyright Ministry of National Security)
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.
(Copyright Office of the President)
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.
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Having carefully read the text of the Prime Minister’s (PM’s) response to the Law Association’s request to reveal the legal opinion and the identity of the opinion giver, I remain marvelling at the PM’s disingenuous excuses. Let’s break it down:
First, the opinion expressed relies almost totally on Rees v Crane [1994] UKPC 4a, which is somewhat surprising considering the later case of Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago) [2006] UKPC 57:
“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].
Of course, the PM is still defending the Chief Justice (CJ), which is not his job. It is for an independent tribunal to assess the evidence, not the PM. Which is why it is surprising that the PM has stepped into the role of the independent investigator, and claims that there is no credible misconduct.
Second, the PM also insists that there is no correspondence between himself and the CJ with respect to the housing issues brought up by Miss Renne during her investigation. Again, it is not for the PM to assess any evidence, especially with himself accused of being involved. It is for an independent tribunal!
Third, the above also applies to the assessment of the WhatsApp messages between the CJ and Dillian Johnson. It is not for the PM to state whether or not evidence exist or does not exist. It is only after an independent investigation is done, that these questions and more will be answered in a fair and dispassionate manner.
Fourth, the PM is also forgetting the words of the Privy Council in supporting the findings of the Court of Appeal, in the matter of Chief Justice of Trinidad and Tobago v The Law Association of Trinidad and Tobago (Trinidad and Tobago) [2018] UKPC 23, that the CJ’s behaviour and actions:
““had such a negative impact on the Office of the Chief Justice and the Judiciary that they threatened to undermine the administration of justice and rule of law”.
Fifth, in supporting an independent investigation, the Court of Appeal stated clearly:
“Thus, the fair-minded and informed observer would recognise that in Trinidad and Tobago, what the Council was demanding at the time was nothing extraordinary or remarkable. It was simply what many others were also demanding, even if done by the LATT in strident and condemnatory tones and terms”.
Therefore, what is in the PM’s head may not be in the minds of the general public.
Sixth, in the matter of fairness to the CJ, the PM and all concerned parties, plus the general public, the following principle applies:
“(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.” [Ex p Doody, (1994)]
One can argue then that because the PM is directly involved as a potential complicit witness, he cannot be an impartial and fair decision maker, but must refer the matter to the President. In other words, he has no discretion to refuse in this matter.
Dr Crowne once more shows his poor understanding of law concerning judicial review.