Trinidad PM can act on CJ impeachment- de la Bastide
(Trinidad Guardian) Prime Minister Dr Keith Rowley has the power to trigger an impeachment process against Chief Justice Ivor Archie although he may be called as a potential witness in the matter, says former Caribbean Court of Justice president Michael de la Bastide.
In an interview with Guardian Media, de la Bastide, a former Chief Justice of the Supreme Court of T&T, said the doctrine of necessity allows for someone to act although there may be some bias or they may be involved in the matter.
“If there is no one else who can perform that function in law the office holder is permitted to do so. That is why it is called the doctrine of necessity,” de la Bastide said.
The other option which can bring an immediate end to the matter is if the Chief Justice resigns from office, making the impeachment process moot.
But a close associate of Archie said that was not an option as the CJ intends to defend his position all the way to the Privy Council.
Guardian Media has been reliably informed that a top government official had put the resignation option on the table for the Chief Justice to consider long before the Law Association of T&T’s vote and he refused.
A senior counsel, speaking on the condition of anonymity, said the third option of the Prime Minister not acting on the Law Association’s petition will no doubt further erode the public’s confidence in the administration of justice.
On Tuesday, the Law Association membership voted in favour of referring an investigative report to the Prime Minister for him to consider whether there was sufficient evidence to advise President PaulaMae Weekes to trigger Section 137 of the Constitution.
The Prime Minister, under Section 137 (4), also has the power to suspend the Chief Justice from office until the outcome of the tribunal or where the Privy Council finds that there is an insufficient basis to remove him from office.
Among the information uncovered by the investigative team was a claim that Archie had approached the Prime Minister to assist three people to get state housing from the Housing Development Corporation in 2015. Neither Archie nor the Prime Minister responded to the claim when approached by the LATT investigative team.
There was also evidence uncovered that Archie had communicated with top HDC officials to fast-track housing applications for over dozen people, who had been referred to him by close personal friends Dillian Johnson and Kern Romero, two convicted fraudsters. Romero died of an ailment in May and Johnson fled to the UK seeking political asylum earlier this year following an attempt on his life. Archie had unsuccessfully petitioned the Law Association to defer the LATT meeting on Tuesday, Guardian Media learned. He had gone to court to block a similar meeting earlier this year and the matter went all the way to the Privy Council and he lost.
The membership of the law body had previously approved a motion of no confidence against the Chief Justice over the controversy related to the appointment of former chief magistrate Marcia AyresCeasar to the High Court. Her appointment was eventually revoked after it was revealed that she left 53 matters unfinished in the Magistrates’ Court.
The cumulative effect of the allegations against the Chief Justice and the position of the Law Association membership on two significant matters places Archie in an awkward position to preside over the Judiciary and to also sit as chairman of the Judicial and Legal Service Commission, the body responsible for the appointment of judges and magistrates, among other matters, a top legal office holder said.
Guardian Media reached out to de la Bastide, who retired from the CCJ in 2011, for comment on the developing controversy involving two of the nation’s highest office holders. He said while he had not researched the matter and could not give a conclusive opinion, he believes the Prime Minister will take legal advice, presumably from the Attorney General and private counsel, before he acts on a petition from the Law Association on whether the CJ should be investigated for misbehaviour in office.
He agreed that there was “weight in the argument” for the Prime Minister to recuse himself from dealing with the issue, as he was a potential witness in the matter and may have to give evidence at the tribunal investigating the conduct of the Chief Justice.
“But if there is no alternative, the matter cannot go by default, and therefore he would be right in those circumstances to make a decision in the matter,” de la Bastide said.
“Bear in mind, the Prime Minister is not involved in the determination of any issue of impeachment, all he does is set in motion the machinery by which it can be determined by an independent commission whether there has been conduct of such a nature on the part of the Chief Justice that he ought to be removed from office. That determination is made by the Commission, not by the Prime Minister.”
De la Bastide said the PM does not have to perform a determinative role, such as deciding on guilt or not, and while the suggestion of him recusing himself and appointing an acting Prime Minister to consider the matter might “technically meet the letter of the law” under Section 137 of the Constitution, it was not consistent with the intention that the “real Prime Minister” must make the decision on whether to initiate impeachment proceedings or not.
He said in a scenario of appointing an acting Prime Minister, one will wonder who in fact is making the decision and how long should the substantive office holder absent himself to allow the interim Prime Minister enough time to consider the matter.
It would also be open for people to consider “if the decision is actually being made by him (acting PM) and not simply being used as a mouthpiece of the substantive Prime Minister.”
“I would find at the moment it is more attractive to rely on the doctrine of necessity rather than the ploy, if I may put it that way, of involving an acting Prime Minister,” he said.
Asked whether the CJ should remain in office if the Section 137 provision is triggered, de la Bastide said he was hesitant to venture an opinion as “each case depends on its own facts.” However, he noted that the issues identified by Guardian Media, such as erosion of the confidence in the administration of justice and the ability to appoint judges and magistrates, “were in favour of suspension.”