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Tuesday 25 September 2018
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CJ Archie ‘heartened’ after losing at Privy Council

Chie Justice Ivor Archie...loses at Privy Council.
Chie Justice Ivor Archie...loses at Privy Council.

AFTER suffering defeat at this country’s highest appellate court, Chief Justice Ivor Archie said he was nonetheless “heartened by the decision of the Privy Council.”

In a statement, Archie said he welcomed the strong statements of principle and good sense of the ruling, adding that it was his hope that he will not need in the future to go to the courts to establish his rights.

Archie, who is in Tobago, earlier this year challenged the Law Association’s investigation of allegations of misconduct against him. His complaints about the process were dismissed by the local appellate court and yesterday by the Privy Council, which broke convention by delivering the ruling during itsrecess. It pointed out that the local courts dealt with the “important and sensitive” matter with commendable speed, and likewise, it too expedited the hearing of the appeal.

Archie, in his statement, said he instructed his legal team to take the matter to court as a last resort when the LATT, he said, “declared that they could hold a member of the judiciary to ‘account.’”

He sent his statement through his legal team and not through the Judiciary’s court and protocol department as he has done in the past. In late July, Archie drew the ire of two of his judges over a press statement sent on the Judiciary’s letterhead pertaining to his case in the Privy Council. Justices Carol Gobin and Frank Seepersad criticised Archie’s failure to consult with judges, and both were 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.

Archie’s appeal was heard by Lady Brenda Hale and Lords Reed, Kerr, Wilson, and Sumption. In their ruling, written by Hale, the court held that the association “had 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 or not there is a prima facie case for making a complaint is the obvious way to reconcile those two purposes,” Hale wrote.

In rejecting Archie’s challenge, the law lords also lifted the injunction which prevented the association’s council from going to its membership for directions on what steps it should take with the legal advice received from its external advisers, and the report of its own investigating committee.

The association commissioned the report and the retainer for advice in December after its president Douglas Mendes, SC, and senior member Elton Prescott, SC, met with Archie to express their concern over the growing condemnation of his actions in office and to inform him of its intent to probe the allegations against him. These include claims that he sought to expedite HDC housing for certain individuals and that he discussed judges’ security with a third party.

He has denied the allegations, although admitting he had from time to time recommended people for HDC housing.

The two SCs retained were Eamon Harrison Courtenay, a former AG of Belize, and president of the Grenada Bar Association Francis Alexis. The Privy Council’s ruling now clears the way for the special meeting, which was originally scheduled for March.

Hale said the Legal Profession Act empowered the LATT to make a complaint and there was nothing to prevent it from conducting an inquiry before doing so.

“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.”

Legal sources have pointed out that although the LATT, or any member of the public, can make a complaint to the prime minister, he still had the discretion to invoke Section 137 of the Constitution by sending it to the president for further action.

In the PC ruling, Hale, in response to concerns raised by Archie’s lawyers that the shadow 137 investigation by the LATT had the potential to cause damage to the administration of justice as well as Archie, as it was not a formal affair, said the association was “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 the most it could do was to consider, after examination, if it was satisfied that the allegations had no merit, or if its further steps might include referring a complaint to the prime minister.

“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,” Hale said.

“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 manner than many others.

“The LATT will be conscious of any possible legal constraints relating to the publication of its report. But, as the Court of Appeal so comprehensively explained, Section 137 of the Constitution is not one of them.” The law lords also pointed out that the LATT’s investigative committee was not the same as a Section 137 tribunal, as it had no constitutional status and its report would have no binding effect on anyone.

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