Law Association vs PM decision on February 19

CHIEF JUSTICE Ivor Archie was called to account for “a plethora of allegations” drawn from sensational news reports in one newspaper which accused him of two types of criminal activities, and not once did the Law Association discharge the duty it placed on itself to absolve him.

This was the opening salvo of attorneys for CJ Archie during the rolled-up hearing of the association’s legal challenge of the Prime Minister’s refusal to invoke impeachment proceedings.

“Shame” was the word used by Senior Counsel John Jeremie, one of Archie’s lead attorneys, to describe the association’s actions. He also said it was an indictment on the body.

The association’s complaint is that the Dr Rowley fell short of his duties under section 137 of the Constitution by failing to properly investigate the allegations raised in its complaint to him. The association also accused the PM of taking into account, irrelevant political considerations in deciding not to take the matter further. The judge hearing the matter is Justice Vasheist Kokaram who said he will give his ruling on February 9.

On Tuesday, he heard arguments from attorneys for the association, the PM, the Attorney General and the CJ.

Jeremie, in his submissions on Tuesday, made it clear that the CJ was establishing his independence from the executive and was only a party to the proceedings having been made an interested party.

He said the PM acted with care in assessing what was before him to determine if it justified invoking the section 137 process.

Jeremie, who was instrumental in the impeachment of the late former CJ Satnarine Sharma, relieved part of the experience as he went through the Lord Mustill report, which eventually cleared Sharma, admitting that that process ended in “disaster” and left the judiciary in turmoil for some time.

While not calling the name of the newspaper, Jeremie said the reports alleged “not one, but two complaints of criminal conduct” on the part of Archie and contained a “plethora of allegations” in a “campaign” against his client.

He said the association’s complaint then shrunk to the issue of Archie recommending the names of “needy and deserving” people for government housing, to which the CJ has admitted.

Jeremie said he was not trivialising the conduct of the CJ, but added that all the PM was required to do was make reasonable enquiries to determine if the complaint should go to the President.

“The Prime Minister does not determine the question of removal,” he said.

In earlier submissions, Dr Rowley was accused of failing to make his own inquires of the complaint sent to him, and failing to do a fair and impartial investigation. Jamaican Queen’s Counsel, Dr Lloyd Barnett, who leads a team of attorneys for the association, said the Prime Minister failed to make an effort to get answers and fell into “serious error” by assuming all he had to do was to review what was sent to him.

“The association's investigation does not absolve him from making his own inquiries,” Barnett said. One of Dr Rowley’s lead attorneys, Mark Strachan, QC, said the PM had to be satisfied that the complaint was sufficient to warrant sending it to the President for a tribunal to investigate.

“It was not for the prime minister to resolve the conflict in the evidence. It must the sufficiently serious to make a referral. Was it serious?” Strachan submitted, adding that while it was “unsatisfactory and unsavoury” did not warrant a referral.

“He was bound to make a valued judgment to differentiate between errors in judgment and serious misconduct,” the PM’s attorney said.

“He made it clear he took advice and was following it,” he added. Both Strachan and Senior Counsel Reginald Armour, who also represents Rowley, pointed to the association’s own advice from two senior counsel who gave diverging opinions on the question of a referral under section 137.

“Then he goes to his own who says there was no evidence of misbehaviour,” Strachan said.

He added that even if a higher standard of assessment was employed, it would make no difference since no one in possession of the material provided by the association could have arrived at a different decision that it did not warrant impeachment.

Armour also defended the complaints made about Rowley’s statements to constituents and on the hustings, saying even then he was scrupulous in what he said.

Senior Counsel Fyard Hosein, who appeared for the Attorney General, said while the association’s investigation was “well-conducted and extensive,” the allegations against the CJ were “unspecific and questionable.”

In July 2019, Dr Rowley said he did not initiate impeachment proceedings against the Chief Justice after receiving legal advice, which said he should not take the association’s advice to invoke section 137 proceedings to have Archie impeached for allegations against him.

He said the advice guided him on deciding there were insufficient grounds to warrant him to make a representation to the President for Archie’s removal and for a tribunal to be set up to investigate the series of allegations which arose in 2017.

The association wants the judge to direct Rowley to reconsider his decision so that a tribunal can be appointed to investigate Archie.

It also wants declarations that the PM’s decision not to make representations to the President was illegal, unlawful, contrary to law, unreasonable and an improper exercise of discretion and that it was not made in the performance of his constitutional functions in the public interest. Declarations also being sought include that the Prime Minister’s decision was made in bad faith and actuated by bias; that he took into account irrelevant considerations; and that he failed to take into account relevant considerations.