UK Privy Council ruling: Law Association can investigate T&T CJ

 (Trinidad Express) The Law Association of T&T (LATT)  has been given the all clear to  continue its investigation into allegations that this country’s third highest office holder “corruptly and knowingly used his office in concert with convicted felons for their benefit”.

The 16-page judgment was uploaded to the Privy Council’s website at 10.07 a.m. today. The decision to dismiss Chief Justice Ivor Archie’s appeal was a unanimous one with the Law Lords also discharging a Court of Appeal ruling which has restrained the LATT from convening a  meeting of its membership to consider any legal advice it might receive in relation to its inquiry and/or investigation of the Chief Justice .

Chief Justice Ivor Archie

The Law Lords  were asked to determine the following:

1)  whether  Section 137 of the Constitution provides the sole basis for investigating the conduct of the Chief Justice and removing him from office; “if not, whether Section 5 of the Legal Profession Act provides the respondent (LATT) with authority to conduct an investigation into allegations made against the appellant (CJ); 

2) whether the respondent’s investigation is tainted by pre-judgment or bias; 

3) whether the respondent’s investigation has been carried out unfairly and in breach of the principles of natural justice”.

In arriving at their judgment, the  grounds presented by Archie’s legal team were struck down. The judges noted in addressing each point, “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.” 

On point two, the judges noted the LATT is within its powers  under the  Legal Profession Act  to commence 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.

 “If they are, then taking some action to promote, support and maintain the administration of justice and the rule of law clearly falls within section 5(f). There is then power under section 5(g) to do such things as are conducive to achieving that purpose.

 The LATT has no power to hold the Chief Justice accountable.  But it does have the power to make a formal complaint where this is justified and the duty to defend the judiciary against unjustified criticism. Some “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.”

On the ground of  apparent bias and unfairness , the judges said these were not well founded.

“The Board agrees with the Court of Appeal that the LATT’s investigation cannot be equated with a judicial or quasi-judicial determination of legal rights and liabilities to which the conventional rules of natural justice apply. Nor was it necessary for the Board to consider the more difficult question of the extent to which public bodies are required to be impartial in carrying out their statutory functions. This was because there are concurrent findings in the courts below that the matters relied upon by the Chief Justice are not such as to give rise to an appearance of bias on the part of the LATT, applying the test laid down in Porter v Magill [2002] 2 AC 357”. Since the local courts in Trinidad and Tobago were far better placed than the Board to consider what the fair-minded and informed observer in Trinidad and Tobago would make of the matters complained of, it was not for the Board to disagree . However, even if the rules of natural justice applicable to the decisions of a judicial or quasi-judicial body did not apply, “public authorities do have a duty to carry out their statutory functions fairly..”

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