“If the Chief Justice must accept defeat gracefully, it should have been done long ago. Grace is impossible at this point, and the judiciary is already far more impugned by the Chief Justice than merely his latest exchange with Justice Gobin.
“The latter is merely a symptom of a far deeper problem caused by the Chief Justice holding onto office at all cost. […] A proper investigation will certainly bring out what is hidden or alternatively clear the Chief Justice in no uncertain terms.“
The following Letter to the Editor in response to commentary by Dr Emir Crowne on embattled Chief Justice Ivor Archie was submitted to Wired868 by Mohan Ramcharan from Birmingham, England:
On 24 July 2019, in his Wired868 letter to the editor, Dr Emir Crowne explained his support of Prime Minister Dr Rowley’s decision not to refer Chief Justice Ivor Archie to a tribunal.
He wrote: “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.”
Dr Crowne’s argument was/is fatally flawed because:
First, the PM’s discretion to refer the matter of the CJ’s perceived conduct to the president is factually not an intrusion “…into judicial independence and the usual separation of powers”. If it were, then the constitution itself is fundamentally wrong to give such discretion to the PM.
Dr Crowne also suggests that the president too would be complicit in assaulting the principle of the ‘separation of powers’ by convening an s137 tribunal. Read what Dr Crowne says very carefully.
Second, judicial review is a legitimate legal investigation of how powers and discretions, derived in law, are used (or not used). Every first-year law student will be aware of this. It is about the Rule of Law.
That Dr Crowne says “…to then have a Court review the prime minister’s exercise of his discretion would then further intrude into the separation of powers” is an absurd conclusion or statement.
How? The courts have a mandate to judicially review any case, where there is merit, by investigating how the applications of law are carried out by those exercising public functions—which the PM certainly is.
This has emerged clearly from the basic principles of the Rule of Law and the principles of accountability, including separation of powers, which hark back to Magna Carta 800 years ago and have stood the test of time.
In another letter to the editor on 2 August, Dr Crowne does an about-face to write: “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.”
The contrast in opinions, howsoever arrived at, is startling. In essence, Dr Crowne’s first letter makes the case that the PM’s decision not to refer the matter to the president was correct because the PM sought ‘unimpeachable’ legal advice. Notably, in that article, Crowne did not examine the nature of the legal advice.
Now in his latest letter, he makes the case that whether or not a tribunal is convened under s137, there is a perception that the integrity of the judiciary has been impugned.
Is he saying now that while there is a valid perception of the judiciary’s integrity being impugned, a tribunal constituted via an s137 referral on the matter of potential misconduct is irrelevant? This is all very confusing.
Dr Crowne may attempt to wriggle out of his obvious self-contradiction by ‘distinguishing’ the matter of Justice Gobin’s transfer to Tobago against her wishes, from the issue of the PM making a referral on other matters. But that just wouldn’t cut.
The issue with Justice Gobin simply adds to the pile of evidence that lies with the PM and in the public domain that the case for an s137 referral is more necessary than ever if only to ascertain the facts. Here are other reasons that justify an investigation, adapted from Hill, H QC:
- 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.
If the Chief Justice must accept defeat gracefully, it should have been done long ago. Grace is impossible at this point, and the judiciary is already far more impugned by the Chief Justice than merely his latest exchange with Justice Gobin. The latter is merely a symptom of a far deeper problem caused by the Chief Justice holding onto office at all cost.
Given the recent release of a voice recording allegedly revealing Justice Lucky’s involvement in the CJ’s matter, there is much that is hidden and gradually coming to light. A proper investigation will certainly bring out what is hidden or alternatively clear the Chief Justice in no uncertain terms. Dr Crowne would have us ignore all of this.