Judges, CJ feud

TWO judges of the Supreme Court have taken issue with a statement issued by the Judiciary on Monday which purported to clarify the outcome of the litigation between Chief Justice Ivor Archie and the Law Association (LATT) at the Privy Council in London.

Justices Carol Gobin and Frank Seepersad both expressed their concern in e-mail correspondences with the CJ on Friday. Their e-mails were also copied to all judges. They have criticised the failure of Archie to consult with judges, especially since the release was sent out on the Judiciary’s official letterhead.

Gobin said it was “inexcusable” that the release was not sent to judges for discussion, while Seepersad agreed. Both were also of the opinion that Archie instituted the case before the Privy Council in his private capacity, and not by or on behalf of the Judiciary.

Seepersad wrote: “We are all part of the Higher Judiciary and no collective decision was taken by us to correct any media report or to clarify any issue that is before the Board for its consideration.

“In addition, I am unaware of any meeting and /or position that the said matter impacts us as judges or was instituted so as to clarify whether the Law Association can investigate our individual conduct. I am of the view that the use of public office to further a personal agenda is inappropriate and unacceptable. In the circumstances, I wish to categorically distance myself from the said media release.”

Seepersad first raised his concerns and they were responded to by Archie. Gobin then added her thoughts on the issue. She said: “Any press release coming from the Judiciary should be circulated to the judges.”

Gobin said the release on the Privy Council hearing had not been sent to them. “If the CJ believed that a release was necessary because in some way it concerns a matter which ‘impacts the Judiciary as a whole’ then the failure to send it to us is inexcusable.

“The purpose of the release is clear even to the uninformed observer. Any explanation of what happened at the end of the hearing in London, the eloquence of the CJ’s lawyers notwithstanding, ought to have come from the CJ’s lawyers who he has retained privately, one assumes, to prosecute his private case against the LATT. The use of the stamp of the Judiciary was inappropriate to put it mildly.”

Gobin said Archie’s assurances in his response to Seepersad that he did not need to be advised by the judge or anyone else on any matter which impacts the Judiciary brought her no comfort.

“The events of the last several months which have brought us to this point clearly demonstrate that the CJ needs serious and objective advice on this very issue. I respectfully suggest he starts with a look back at our Code of Ethics and if something is not sufficiently clear, then he should exercise his prerogative to consult with some judges, starting with the three most senior ones.

“The CJ needs to be reminded that what is impacting on the Judiciary as a whole extends well beyond the legal issue that fall to be determined in this litigation.”

She said at a recent meeting of judges they agreed that a previous statement by the Judiciary on sabbatical for judges was contrary to what was stated in it.

“There was no adoption of the internal committee report nor were any arrangements put in place.

“I am extremely concerned that the administrative machinery of the organisation was used in that case to put out a false statement and more recently to promote a position or an explanation of a party to litigation.

“There is an obvious danger in allowing this to continue even by our silence.”

She also took a jab at the leave issue, telling her colleagues “for those of us who have been working without accumulated vacation leave, calculated to exclude public holidays and weekends and rainy days and almost sabbatical leave, let us all enjoy our well-deserved break.”

The High Court goes on its long vacation break this week.

In his response to Seepersad, Archie said: “As administrative head of this institution I do not need to be advised by you or anyone else on whether any matter impacts the Judiciary as a whole, nor is the mandate of any meeting required to issue a press release.

“I do not run the Judiciary by committee although as Chief Justice it is my prerogative to consult with other judges as and when I deem necessary. I have chosen to respond on this singular occasion since your email was addressed separately to me in addition to the other judges.

“Your time will be more productively employed attending to YOUR job while allowing me to attend to mine,” he told the judge.

Commenting on the release earlier this week was senior counsel Martin Daly. Speaking during a morning television programme, Daly said it was clear that the CJ’s appeal went “very badly” and the release was a “puerile attempt to contain damage that the appeal is likely to be lost.”

On Monday, the Privy Council reserved its ruling on Archie’s challenge of the legal authority by the LATT to investigate allegations of misconduct against him. The hearing ended abruptly with the judges saying they did not wish to hear from the LATT’s lawyers.

There has been speculation on what the committee’s actions meant, with at least two senior attorneys – Ramesh Lawrence Maharaj and Daly – suggesting that the judges had already made up their minds that Archie had lost.

Others have suggested otherwise, pointing out that the judges could have formed the opinion that there was nothing for them to consider since the CJ’s lawyers argued that the LATT’s position had changed from seeking to determine whether the allegations are true to doing no more than enquire into the facts sufficiently to decide whether there is a proper basis to refer the allegations to the Prime Minister.

It is not unusual for Privy Council law lords to not hear further oral submissions in an appeal before them.

But questions are now being raised by the legal fraternity on who is paying for Archie’s legal team.

“In their view (the judges) the CJ vs LATT litigation was not brought on behalf of or in the interest of judges. The spin taken by the Judiciary’s statement is signalling that the CJ’s team is being paid out of the public purse, or expects to be so paid,” lawyers have said after the judges’ emails were circulated yesterday.

Additionally, Gobin’s position on the sabbatical and the Judiciary’s statement on the issue also raised red flags in the fraternity, since, they pointed out, according to her, there were no arrangements put in place for judges to access that type of leave.

The issue is likely to be raised in the interpretation summons filed by the Attorney General which goes on trial before Justice James Aboud in September.