Saturday 4 April, 2020

Archie loses Privy Council appeal

An appeal filed by Chief Justice Ivor Archie with the Privy Council challenging an investigation by the Law Association (LATT) into allegations of misconduct made against him has been rejected.

The decision by the five British Law Lords, Lady Hale and Lords Reed, Kerr, Wilson, and Sumption to dismiss the appeal was unanimous.

The ruling means that the Law Association is free to continue its investigation into Archie.

In the 16-page ruling, the Privy Council found that the LATT had the power to make a formal complaint where this is justified and the duty to defend the judiciary against unjustified criticism.

However, it ruled that the LATT has no power to hold the Chief Justice accountable. 

The body, can, however, have an “inquiry to establish whether there or not there is a prima facie case for making a complaint is the obvious way to reconcile those two purposes.”

The ruling, written by Lady Brenda Hale listed two reasons for the law lords’ decision to reject and dismiss the appeal:

“As to whether section 137 of the Constitution is effective to prevent LATT conducting the investigation, the Board decides it is not. The independence of the judiciary from the other arms of Government, the executive and the legislature is a vital element in any modern democratic constitution.

Judicial independence is secured in a number of ways, but principally by providing for security of tenure: and in particular that a judge may only be removed from office, or otherwise penalised for inability or misbehaviour; and removal from office should be in accordance with a procedure which guarantees fairness and the independence of the decision-makers from government.

“Section 137 of the Constitution of Trinidad and Tobago makes elaborate provision for the removal of judges (of the High Court and Court of Appeal) requiring the appointment of a tribunal where the question of removing a judge ought to be investigated [19].

The Court of Appeal decided, and the Board agrees, that there was nothing in section 137 to indicate that it was the only way in which the conduct of a judge could lawfully be investigated [20].

The committee set up by LATT was not the same as the tribunal that may be appointed under section 137; it has no constitutional status and its report would have no binding effect upon anyone [21]; the LATT is in no position to make findings of fact which are in any way binding upon the Chief Justice or upon any tribunal which might be established under section 137.

The Association will be conscious of any possible legal constraints relating to the publication of its report. But… section 137 of the Constitution is not one of them.”

 

Lady Hale also noted that the LATT is within its powers under the Legal Profession Act to begin such an investigation.

“The Law Association is established under section 3 of the Legal Profession Act 1986.

The Court of Appeal held, and the Board agrees, that the purposes of the Association in section 5(b), (f) and (g) (representing and protecting the interests of the legal profession), (f) (promoting, maintaining and supporting the administration of justice and the rule of law) and (g) (doing such things as are incidental or conducive to these purposes) empowered the LATT to make a complaint to the authorities about the conduct of a judge - and there was nothing to prevent it from conducting an inquiry before doing so, so as to inform itself whether a complaint would be appropriate [29].

In the Board’s view, the crucial question was whether the allegations were sufficiently serious to have the potential to undermine the administration of justice and the rule of law.”

The law lords were asked to determine whether section 137 of the Constitution was the only means by which the conduct of the Chief Justice could be investigated and cause his removal from office.

Investigations by LATT focused on allegations reported in the media, which accused Archie of attempting to persuade judges to change their State-provided security in favour of a private company where his friend, Dillian Johnson, worked.

The Chief Justice was also accused of attempting to fast-track applications with the Housing Development Corporation (HDC) for a number of people. 

 

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