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Crowne: Archie’s Kobayashi Maru; why Chief Justice should resign

Should the Chief Justice Resign? Yes, but not for the reasons you think.

To date I have opposed the referral of the Law Association of Trinidad and Tobago’s (LATT’s) report to the Prime Minister and I have also supported the Prime Minister’s decision to not refer that report to President.

The LATT’s report, in my view, was not reliable. It made ‘findings’ based on hearsay and double hearsay. As a matter of principle, therefore, I could not support its referral to the Prime Minister.

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 turn, I also supported the Prime Minister’s decision to not refer that report to the President. Not merely because I opposed the report in the first place, but because the Prime Minister acted fairly and dispassionately in the circumstances. He sought, and relied upon, unimpeachable legal advice in rendering his decision. Any purported judicial review of the Prime Minister’s reasonable exercise of discretion is bound to fail.

On Monday, however, by way of letter to the Prime Minister, the LATT sought to dissect the Prime Minister’s decision in the hopes that he would reconsider his position. With respect, I disagree with the LATT’s attempt to impugn legal advice that was both appropriately sought and relied upon. Especially since the two legal opinions that the LATT itself sought to rely upon in helping to inform the membership’s vote in December was roundly criticised as lacking in substance by practically everyone who spoke at that meeting, myself included.

But the situation does not end there.

In recent days we have also seen the publicising of internal emails between Justice Gobin and the Chief Justice. The emails set out Justice Gobin’s disagreement with her assignment to the Family Court in Tobago and the Chief Justice’s response to same.

With the greatest of respect, the very public airing of these matters cannot strengthen the public’s confidence in the administration of justice. The judiciary must distance itself from the familiar bacchanal that we simultaneously love and detest in this country.

Photo: Justice Carol Gobin.

In fact, the integrity of the judiciary must be protected at all costs. Not merely from agenda-laden attacks and personal animus, but on principle. It is on this basis that I believe the Honourable Chief Justice should resign.

In my view, the merits of the allegations against the Chief Justice are irrelevant. Nor should my suggestion that he resign be taken as my personal belief in any of those allegations. His resignation should come as a matter of principle. Akin to a judge who recuses themselves from hearing a matter due to the mere perception of bias (as opposed to any actual bias per se); so too the Chief Justice might consider voluntarily resigning to protect the integrity of the Office of the Chief Justice, and judiciary as a whole, despite any wrongdoing.

The judiciary’s own Statements of Principle and Guidelines for Judicial Conduct is instructive in this regard. In sub-section 2.2 it provides that:

“The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.”

Maintaining the integrity of the judiciary is therefore both a matter of fact and a matter of perception. I fear that even in the absence of any findings of misconduct by a Presidential tribunal constituted pursuant to section 137 of the Constitution, there is an undeniable perception that the integrity of the judiciary has been impugned.

If the Chief Justice voluntarily resigns, his act of self-sacrifice (as it were) would undoubtedly restore society’s collective faith in the administration of justice, irrespective of one’s agenda. It would be the judicial equivalent of the Kobayashi Maru.

About Dr Emir Crowne

Dr Emir Crowne
Dr Emir Crowne is a barrister and attorney-at-law attached to 
New City Chambers in Port-of-Spain.

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4 comments

  1. Boy you such a fraud eh!

  2. Crowne’s final comment that “If the Chief Justice voluntarily resigns, his act of self-sacrifice (as it were) would undoubtedly restore society’s collective faith in the administration of justice, irrespective of one’s agenda. It would be the judicial equivalent of the Kobayashi Maru.” – is TOTAL nonsense representative of all else in this editorial. How? The Kobayashi Maru scenario is TOTALLY not about resigning or self-sacrifice – but instead refusing to accept the no-win scenario. See here: https://youtu.be/b9dEI-Ru1CI and https://youtu.be/m6tWmSckE40 The only sense that the Chief Justice is playing out the Kobayashi Maru is that he is dug in like an Alabama tick, refusing to resign and not accepting his no-win scenario. So resigning from office is not part of the Kobayahi Maru and entirely not the judicial equivalent of it. Crowne seems to think he can brow beat everybody with his soundbites and rather vacant dressed-up utterances based on headline intelligence – by relying on his qualifications and international fame in ‘Sports Law’. His agenda is conspicuously to use websites and newspaper articles for the covert purpose of advertising himself. Those among the undiscerning are his potential prey.

  3. Once more, Dr Crowne falls into fallacious arguments lacking substance. He really should stick to sports law. Judicial review lies outside his area of expertise, and he demonstates that fact every time he comments on the Chief Justice’s matter.

    I have said before his reasoning on the CJ’s matter lacks substance and depth. He mouths off without backing up his opinion. Not something a lawyer of his alleged stature ought to do. He trades on his PhD as an expert in all matters of law, when the facts belie this.

    Come, Dr Crowne. Where is the legal evidence/authority to back up your opinion? Every time I have dissected the nonsense you spout, I have given cogent legal reasons why you are wrong, not merely mistaken. In a previous letter to Wired868 which was unpublished, I challenged your take on the Prime Minister’s decision not to refer the matter to the President, with legal reasons given:

    “He [Dr Crowne] claims there’s nothing new in the Law Association’s report that was not already in the public domain. It matters not. What is in the public domain required an investigation to ascertain its veracity. Don’t forget that the Court of Appeal, as noted by the Privy Council, clearly stated that the Chief Justice’s behaviour and action:

    “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”.

    That alone would warrant an independent investigation.

    Dr Crowne goes on to say that the findings relied on hearsay. That is his opinion. An independent investigation would have called witnesses to either confirm or deny what was said and done, collect evidence and present findings supported by such evidence. Without an independent investigation we (the public) are denied knowing what is true and what is not. What is sure is that the CJ has admitted using his office to influence the dispensation of homes to ‘a few needy people’, causing them to jump ahead of others several hundred times over according to what is in the public domain. That is a prima facie case of misbehaviour in public office. That alone too warrants an investigation.

    Dr Crowne then further compounded his error saying that if the court orders the Prime Minister to refer the matter to the President it would be an ‘unusual and twisted intrusion’ into the separation of powers. Nothing could be further from the truth. Courts order retractions of administrative decisions all the time; it prevents the arbitrary use of state power. The separation of powers also includes checks and balances to prevent abuse. The fact that section 137 of the Constitution exists is proof enough that it was envisioned that there might be ‘allegations of misconduct levied against a sitting Chief Justice’, and a process put in place to deal with it. The framers of the Constitution were no dummies.

    The same short shrift can be given to his argument that a tribunal appointed by the president would be an intrusion into judicial independence. One cannot have an “independent” judiciary doing whatever it desires. There must be accountability. Otherwise the judiciary will be a law unto itself!

    His argument that one would have to demonstrate that the PM’s decision was exercised unreasonably falls short. To demonstrate that the PM’s decision falls short of considering all factors is no great hardship – I can think of six reasons rooted in law off the top of my head why the PM can and should be judicially reviewed.

    Don’t forget that the PM is potentially complicit in the CJ’s matters, and cannot be a judge in his own cause. Dr Crowne deliberately avoided this issue.

    And finally, Dr Crowne hints at ‘hidden agendas’, repeating the soundbite of the PM. No evidence exists of any hidden agendas besides Dr Rowley’s paranoia. In any event, an independent investigation can explore this as well. Soundbites without substance are mere politics.”