Even assuming the allegations against Chief Justice Ivor Archie are true, they do not affect his ability to perform the functions of his office under section 137 of the Constitution, according to the opinions of the Law Association’s external counsel.
The association last week received the two opinions of its senior counsel on whether there were sufficient grounds to approach the Prime Minister to invoke the impeachment provisions of Section 137 of the Constitution to investigate allegations against Archie.
The opinions of Dr Francis Alexis, QC and Eamon Courtney, SC, are 15 and 14 pages long, and were solicited last year after the association took the bold move to retain them to provide the advice.
Both said the allegations, if true, did not constitute an inability on the part of Archie to perform his functions as Chief Justice.
However, they disagreed on whether there was sufficient basis for the Prime Minister to invoke the impeachment provisions of the Constitution.
In his opinion, Alexis, a former attorney general of Grenada and president of that country’s bar association, said it was “not for the LATT to decide whether there was sufficient basis for the Prime Minister to make a removal representation regarding the Chief Justice.”
Rather, he said, the LATT might bring to the attention of the PM the allegations in the association’s final report, and “leave it to the Prime Minister to consider and decide whether there is a sufficient basis for him to make such removal representation.” Alexis also said the LATT must pay particular attention to the reminder from the Privy Council in its ruling on August that the CJ was “not accountable” to the association.
Courtney, however, was of the opinion that, on the assumption that the allegations against Archie were true, they “may constitute misbehaviour” under Section 137. He ended by saying there was sufficient basis for the PM to represent that the question of removing Archie ought to be investigated.
“In all of the circumstances, it would be proper for the association to call upon the Prime Minister to consider making such a representation to the President.”
Courtenay is a former AG of Belize and a former president of the Belize Bar Association.
Sources told Sunday Newsday that the council of the association would leave it up to the membership to decide on what to do.
A special meeting has been called for December 11 at the Hyatt Regency, Port of Spain, to consider the advice from the external counsel.
The meeting’s objectives are to consider the report of the council appointed to ascertain/substantiate the allegations against the Chief Justice; to consider the advice of external counsel; and to direct the council to further action if necessary, according to a letter from LATT president Douglas Mendes, SC, to the membership earlier this week. A previous meeting in May was halted when Archie challenged the association’s ability to investigate press allegations against him.
His complaints about the process were dismissed by the local appeal court and the Privy Council. That ruling paved the way for the association to continue with its investigation.
Sources have also 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 by sending it to the President for further action.
In his advice, Courtenay also suggested any allegation sent to the President should be accompanied by “any response” from Archie himself.
While Archie is tight-lipped on his next move, Sunday Newsday understands his attorneys are considering writing to the association before its special meeting.
Archie has repeatedly denied the allegations against him, saying they were “false and irresponsible.” In his most recent statement, issued last month, Archie said it appeared someone was trying to hound him out of office, and he wanted to know who. He described an October article in the Sunday Express as “recycled innuendos.”
He said then, “The Chief Justice categorically rejects the false and fabricated insinuation that he has ever sought to influence any judicial officer in their sentencing or other judicial function.
“The Chief Justice notes the now transparent recurring modus operandi of seeking to hound him out of office using tired tactics of innuendo with reliance and comment on that innuendo. These tactics surely cause one to wonder and ask who so desperately wants this Chief Justice out of office and why.”
In its ruling, the Privy Council advised that the most the LATT 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,” the ruling 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.