28 Aug 2018

Prime Minister’s apathy

Since the release of the judgment from the Judicial Committee of the Privy Council (PC) in the matter between the Law Association of Trinidad and Tobago (LATT) and Chief Justice Ivor Archie (CJ), there have been several commentaries concentrating on either the position of the LATT or the CJ. Oddly enough, no one has scrutinised the behaviour of the Prime Minister (PM) in this entire situation.

Prior to the release of the judgment, I had written:

I am aware that the judgment is merely the first stepping stone… it is only to determine whether the CJ can be investigated by the Law Association (LATT) with a view to determine whether a recommendation can be made to the Prime Minister (step 2) to refer the matter to the President (step 3) to set up a tribunal (step 3) to investigate the CJ (step 4).

Now that the judgment has been given, I realise that there are still 5 steps left… In other words, initially there were 6 steps, the PC judgment being the first in the series.

1.    LATT must investigate the CJ to determine whether there is indeed cause for a recommendation to be made to the PM – to make a recommendation to the President triggering section 137 of the Constitution.

2.   If a recommendation is made for the PM to trigger section 137, then it follows that the PM should do so, although he is not bound by any means to follow the LATT recommendation.

3.   The President must then set up an independent tribunal to investigate the allegations surrounding the CJ.

4.   The findings of the tribunal will determine whether the President makes yet another recommendation to the Privy Council (PC) to remove (or not remove) the CJ from office.

5.   The Privy Council removes the CJ, or not.

This is unnecessarily long-winded and further brings the judiciary into disrepute, since clearly,

a)   we have a sitting Chief Justice who is accused of serious misbehaviour in office, and

b)   who just as clearly used his position to further the personal circumstances of convicted criminals, as well as

c)    manipulating a sitting judge into unethical behaviour unbecoming of the office of that judge herself – quite possibly another case of misbehaviour in office, and

d)    creating yet another situation which no one is investigating to date, and

e)    creating a mess when he ‘fired’ an appointed judge, to which we still do not know whether he was acting as CJ or Chairman of the JLSC. Either way, that matter is before the courts, as ironically the CJ himself went to prove that the only way to remove a sitting judge is via the Prime Minister using section 137 of the Constitution to recommend steps 1 to 6 outlined above.

Keep in mind that this junior judge mentioned in (c) above has also admitted to assisting a convicted criminal using her office as the lever for the help that was obtained and admitting that it was at the instigation of the CJ – her line manager – which pressured her into this action.

Keep in mind also that the PC has reiterated that the Trinidad and Tobago Court of Appeal had found that the allegationshad 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”.

In all of this, the PM has been uncharacteristically and unexplainably silent. Bearing in mind that it is not only the duty of the President to protect the Constitution, but also the duty of the PM, one can only wonder at this.

One can lay blame – or at least a large part – of the current situation at the feet of the PM for having made the country into a laughing stock throughout the Commonwealth and the world. Outsiders viewing the country might well be thinking that politicians in Trinidad and Tobago are only playing at understanding the constitution, and one can plausibly sympathise with them.

There is no sound reason for the PM not to recommend to the President to follow the section 137 procedure. Certainly, there is no physical impediment that the PM has which prevents this. Therefore, one can only speculate that there is some mental impediment which has afflicted the PM.

A section 137 recommendation would have possibly saved the country, the judiciary, the PM himself, the CJ and numerous other parties this international embarrassment. The matter may have well been concluded by this time, and guilt or innocence established, the CJ would have been in no doubt about his position. Neither would the citizens.

The discretion to trigger section 137 lies with the Prime Minister, everyone agrees that this is so. Failure to do this, considering the grievous accusations and the apparently blatant misbehaviour and actions of the CJ, is damning upon the Prime Minister. By failing to consider section 137, the PM has effectively fettered himself such that the PM has left himself open to legal action.

Fettering of discretion is an important part of public law, and the basis of many judicial review claims, with good reason. The PM’s adamant refusal to even consider section 137 is effectively a fetter upon the discretion granted to him by the Constitution and expressly forbidden by numerous case precedent. Lord Reid in British Oxygen Co v Board of Trade [1971] AC 610 said that an authority which is granted a discretion must not refuse to listen at all, which is effectively what the PM has done by his obstinate stance of ‘non-interference in judicial matters’.

"A decision that is the product of a fettered discretion must per se be unreasonable"

(Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299).

On a different but related note, the cynic in me wonders what is going on between the CJ and the PM, as it appears that the PM is ‘protecting the CJ’ for some unnamed reason. Rumours are already circulating about race, in that they are of the same race and ethnicity. One shudders at this, but clearly, rumours such as this one damage both the PM and the Judiciary further.

It is quite clear that the PM needs to give the country a full and coherent explanation of his apathy.