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Privy Council rules against Chief Justice
The Law Association has been given the all clear to complete its investigation into the veracity of misconduct allegations levelled against embattled Chief Justice Ivor Archie.
Delivering a 15-page judgment yesterday, five Law Lords of the United Kingdom-based Privy Council dismissed a lawsuit from Archie challenging the association’s jurisdiction to conduct the inquiry.
The decision means that the association can now hold a special general meeting of its members to consider a report into the allegations and decide if they are sufficient to refer them to Prime Minister Dr Keith Rowley to invoke impeachment proceedings under Section 137 of the Constitution.
Regardless of the eventual decision of the association’s membership, the final decision still rests with Rowley, as he has the sole discretion to decide whether to make the recommendation to the President to appoint a tribunal to investigate the allegations.
In a press release issued shortly after the judgment was published on the court’s website, yesterday, Archie still sought to justify his decision to file the lawsuit against the Law Association, earlier this year.
“I had instructed that these proceedings be brought as a last resort and only when the Law Association declared that they could hold a member of the Judiciary “to account”. That I considered to be a threat of grave concern and contrary to the independence of the Judiciary and the rule of law,” Archie said.
Although the Privy Council rejected all the complaints raised by the Chief Justice in the appeal, Archie appeared to not want to concede defeat as he highlighted portions of the judgment, in which the court urged the association to be cautious in disseminating its final report.
“I welcome these strong statements of principle and good sense, It is my hope that I will not need in the future to have recourse to the courts to establish my rights,” Archie said.
In contrast, the association, in its release, maintained that Archie’s claim was misconceived as it had handled the entire situation correctly.
“As the association has maintained all along, it has no disciplinary power over the Chief Justice and he is not bound to participate in the association’s investigation. But it is within the association’s statutory mandate to investigate serious allegations against any member of the Judiciary which may undermine the administration of justice and rule of law,” the release stated.
The association noted that as a result of the decision, an injunction, which was granted to Archie pending the appeal, was automatically discharged.
It stated that it would not make any further statements until the meeting, to discuss the investigation with its members, is called.
In his lawsuit, Archie’s lawyers contended that the association’s investigation mimicked the Section 137 procedure.
President of the UK Supreme Court, Baroness Brenda Hale, who chaired the panel and wrote the judgment, disagreed.
“The short answer to all these points is that the association 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,” she said.
She also suggested that the association was the ideal party to make such a recommendation to the prime minister.
“Indeed, as a body of lawyers, who have so far proceeded with considerable caution, they might be thought better able to conduct such an investigation and present its conclusions in a responsible way than many others,” she said.
However, she warned the association of potential impact of disseminating the findings of fact in its report.
“If the association’s conclusions on the facts are published, there would be widespread media coverage and pressure on the Chief Justice to resign, thus undermining the very protection which the Section 137 process is designed to give him,” Hale added.
Hale and her colleagues also refused to accept Archie’s allegations that the association was biased as it passed a motion of no-confidence against him and members of the Judicial and Legal Service Commission (JLSC) over their handling of the short-lived judicial appointment of former chief magistrate Marcia Ayers-Caesar, last year.
They noted that High Court Judge Nadia Kangaloo, who initially approved the lawsuit, and the Court of Appeal, which later reversed Kangaloo’s decision, both agreed that it (the association) is not biased.
“The local courts in T&T are far better placed that is this Board to consider what the fair-minded and informed observer in T&T would make of the matters complained of. It is not for this Board to disagree,” Hale said.
Archie was represented by Philip Havers, QC, John Jeremie, SC, Ian Benjamin, SC, Kerwyn Garcia and Hannah Noyce. The association was represented by Christopher Hamel-Smith, SC, Jason Mootoo, Rishi Dass and Alvin Pariagsingh.
The controversy surrounding Archie arose late last year in a series of newspaper reports which accused Archie of attempting to persuade the judges to change their State-provided security in favour of a private company in which his friend and convicted fraudster Dillian Johnson worked.
Archie was also accused of attempting to fast-track Housing Development Corporation (HDC) applications for Johnson, who has been convicted of fraud, and several other people.
Archie only responded to the allegations once, as he denied discussing judges’ security but admitted to suggesting persons for HDC housing. Late last year, Johnson fled to the United Kingdom after he was wounded at a shooting at his home.
Archie was also linked to convicted fraudster Kern Romero, who was accused of using his alleged friendship with Archie to defraud people. Romero died in hospital, earlier this year.
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 Johnson.
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 are sufficient to trigger impeachment proceedings under S137 of the Constitution.
Under the section, the President appoints a tribunal after misconduct allegations against a CJ or judge are referred by the Prime Minister.
The tribunal, which includes a chairman and at least two other members, all with appellate judicial experience in Commonwealth jurisdictions, will then investigate. The tribunal reports to the Privy Council, which then gives the President recommendations on what action, if any, should be taken.
Archie had repeatedly refused the association’s request to directly respond to the allegations.
Prime Minister Dr Keith Rowley and members of his Government have said that they are observing the situation but would and could not intervene.
Several of Archie’s judicial colleagues have called upon him to address the allegations publicly
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