Embattled Chief Justice Ivor Archie has one final bid to stop the Law Association of T&T (LATT) from resuming its investigation into misconduct allegations levelled against him.
Archie will now have to petition the United Kingdom-based Privy Council after his lawsuit barring the investigation was overturned by three of his Court of Appeal colleagues yesterday.
Presenting submissions after the association scored the major legal victory, lawyer Christopher Hamel-Smith, SC, said LATT had agreed to wait to recall its special general meeting until Archie files his appeal and is granted leave to pursue it.
The meeting, in which the association’s members were expected to discuss the report into the allegations and vote on what action, if any, should be taken, was cancelled after Archie filed the lawsuit in March.
Hamel-Smith also opposed a move by Archie’s lawyer, Ian Benjamin, to stop LATT from allowing two queen’s counsel retained to give advice on the results of the investigation from resuming work.
Benjamin’s request was eventually granted as acting Chief Justice Allan Mendonca and Appellate Judges Peter Jamadar and Nolan Bereaux agreed to put a stay in place.
Archie was not present for the judgement, as he is currently on continued vacation, which he is using to complete a fellowship at the Federal Judicial Centre in Washington, DC. (See editorial on Page A18) The application for leave to go to the Privy Council was expected to be filed yesterday evening and will be determined by the court next Monday.
In an unusual move, all three judges wrote separate judgements in the appeal although they arrived at the same conclusions. In their individual judgements, they all ruled that High Court Judge Nadia Kangaloo was wrong when she granted Archie’s judicial review lawsuit and the corresponding injunction blocking the investigation. They rejected Archie’s contention that the investigation was illegal as Section 137 of the Constitution provides the only method for investigating allegations of misconduct against a CJ or judge.
Under Section 137, the President appoints a tribunal after misconduct allegations against a CJ are referred by the Prime Minister or against a judge by the Judicial and Legal Service Commission (JLSC). The tribunal, which includes a chairman and at least two other members, all with judicial experience in Commonwealth jurisdictions, will investigate and then make recommendations.
While Bereaux admitted that the procedure adopted by the association was similar to the process prescribed under the Constitution, he said this did not invalidate it.
“The fact of imitation of the procedure cannot render the enquiry wrong. But more importantly, the apparent mimicking of the procedure is simply an attempt by the LATT to be fair,” Bereaux said.
Jamadar also questioned whether Archie’s suggestion that an investigation into serious allegations could be initiated by the PM or JLSC without preliminary checks.
Jamadar said: “Thus, if the CJ is correct, neither the PM nor the JLSC can undertake any kind of inquiry or investigation, they are mere conduits, mindlessly and irresponsibly representing that a CJ should be investigated with a possible view to suspension and/or removal.”
Mendonca suggested that Archie’s approach would also infringe citizens’ constitutional right to freedom of thought and expression.
“No useful or constitutional purpose can be served in so doing. Indeed, to do so would contradict the democratic notions of our society and the expectation that a judge’s conduct can be the subject of public scrutiny and comment,” Mendonca said.
Bereaux supported the point, as he said the Section 137 tribunal merely protects judges from arbitrary action by the Executive and not from public scrutiny. While Bereaux did not make any ruling on the veracity of the allegations against Archie, he criticised his (Archie) handling of the situation.
“They required strong and authoritative responses. Nothing of the kind has been forthcoming. When a response was in fact given, it was tepid and inadequate in the extreme,” Bereaux said.
He also questioned Archie’s challenge of the investigation, which he pointed out could not affect his (Archie) tenure.
“The submissions of the respondent are unduly restrictive of the rights of the public. They bear the hallmarks of an attempt to suppress the facts. If the allegations are false, as the respondent contends, then why stop the enquiry?” Bereaux said.
All three judges dismissed Archie’s counter appeal in which he claimed the association was biased based on their no-confidence motion in him and the JLSC last year. The motion was over their handling of the short-lived judicial appointment of former chief magistrate Marcia Ayers-Caesar.
The association is also being represented by Jason Mootoo, Rishi Dass and Robin Otway, while John Jeremie, SC, Kerwyn Garcia and Keith Scotland are appearing alongside Benjamin.
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The controversy surrounding Chief Justice Ivor Archie arose late last year in a series of newspaper reports which accused him of attempting to persuade judges to change their State-provided security in favour of a private company where his friend and convicted fraudster Dillian Johnson worked.
Archie was also accused of attempting to fast-track Housing Development Corporation (HDC) applications for his friends.
Archie only responded to the allegations once, where he denied discussing judges’ security but admitted to suggesting persons for HDC housing.
In November last year, the Council of the Law Association called on Archie to respond to the allegation that he discussed the judges’ security with a private individual.
The association’s council then appointed a sub-committee to investigate the allegations and sought the legal advice of two eminent Queen’s Counsel to determine if the allegations were sufficient to trigger impeachment proceedings under S137 of the Constitution.
Archie has repeatedly refused the association’s request and calls from colleagues to directly respond to the allegations since then.