Ivor Archie has been the Chief Justice of Trinidad and Tobago (TT) for ten years and is a prominent judicial personality in the Caribbean. On November 12th, 2017, the Sunday Express alleged that the Chief Justice had tried to influence Supreme Court Justices to change their state-provided personal security in favour of a private company with which his close friend, Dillian Johnson, a convicted felon, was associated. On November 19th, the Sunday Express published another article alleging that Johnson was among 12 persons recommended for Housing Development Corporation units by the Chief Justice. On December 4th, the Express reported that the Chief Justice, 57, was joined by Johnson, 36, while on official business abroad (Guyana). Photographs were published apparently showing Johnson lying in a bed and the Chief Justice sitting at the edge, backing the camera, on the telephone and another showing Johnson with a lanyard around his neck holding an identification card allegedly with the printed name of the Chief Justice. The Chief Justice claimed that the photographs were photoshopped.
On November 29th, the Law Association of Trinidad and Tobago (LATT) appointed a committee to “ascertain/substantiate” the facts upon which the allegations made against the Chief Justice were alleged to be based. On November 30th, the President of the LATT met with the Chief Justice and informed him that having regard to the seriousness of the allegations and his failure to respond, the LATT has decided to investigate the allegations to determine whether they are true or not. The LATT offered the Chief Justice the opportunity to respond to the allegations even though it recognized that it had no power to compel him to do so. It, however, mentioned that it intended to refer its report to the Prime Minister which falls within its statutory mandate.
It is to be noted that Article 137 of the TT constitution provides that where the Prime Minister represents to the President that the question of removing a judge ought to be investigated, the President shall appoint a tribunal to enquire into the matter and report and recommend. The Guyana constitution has a similar article.
The Chief Justice filed an application to the High Court for judicial review against the LATT. The LATT is a statutory body, unlike the Guyana Bar Association (GBA). The Chief Justice claimed illegality on the ground that the LATT had no authority under Article 137 to conduct an inquiry. He also claimed bias. The High Court granted the orders. On appeal, the Court of Appeal reversed the decision of the High Court and discharged the orders that had been granted which had prevented the LATT from proceeding with the inquiry. The appeal from the decision of the Court of Appeal by the Chief Justice to the Privy Council has now failed. The inquiry into the allegations against him by the LATT is now likely to proceed.
If the LATT finds no facts to substantiate the allegations, that is likely to be the end of the matter. If it, however, finds that there is a basis for the allegations and reports that to the Prime Minister, who had hitherto declined to act on the allegations in the Express by initiating any kind of inquiry, he would be hard put to ignore the report.
The next step would be for the Prime Minister, if he is satisfied that the matter requires investigation, to advise the President to appoint a tribunal to investigate and report. The Chief Justice’s job will be on the line if the tribunal finds against him. The allegations, if proved, may well constitute misconduct.
This is a unique situation, without precedent, in the Caribbean. Judges have been investigated in Guyana pursuant to constitutional requirements. Justice Kenneth Barnwell, a High Court Judge in Guyana, was investigated by a tribunal appointed by President Hoyte in the late 1970s. He was found guilty of misconduct – attempting to bribe a magistrate – and was dismissed. He later challenged his dismissal and it was overturned by the Court of Appeal on the ground that he was not given an opportunity to answer the allegations before the report was made to the Prime Minister. There has been no case outside India and Pakistan where the private Bar has been so active in holding the judiciary to account.
What is happening in TT should be a warning to judiciaries everywhere in the region. While judges should not be looking over their shoulders, they should be cognizant that their behaviour is under scrutiny and overstepping the boundaries of propriety can incur the concern of the legal profession or of the wider public. The action by the LATT is a bold action and, whatever, the outcome, it is leading the way for members of the legal profession to take a stand for upholding the integrity of the judiciary.
Unlike Guyana, independent, civil society bodies in TT were able to flourish and grow in strength. While the GBA had its heyday of anti-authoritarian militancy from the mid-1970s to the end of the 1980s, it has struggled in recent years to attract the full support of the legal profession. Every time it makes an effort to comment on public issues, it has to contend with allegations of political partisanship. For that reason, it is inconceivable that the GBA can take up the type of challenge as the LATT unless it presses its case for statutory recognition and for compulsory membership of lawyers in private practice. This will enable it to build capacity for independent action and for the maintenance of integrity.