Judge sends LATT complaints on Archie back to Rowley

THE Prime Minister will have to reconsider, “with an open mind” the Law Association’s complaint against Chief Justice Ivor Archie that his recommendation for government housing for “needy and deserving” people was sufficient to initiate impeachment proceedings.

Justice Vasheist Kokaram made the order on Wednesday in his ruling on the association’s legal challenge.

Of the association’s complaints, it was only successful on its assertion that Dr Rowley took into account irrelevant political considerations in deciding not to take the matter further.

In its application, the association complained that Rowley “was more concerned with shutting down” its recommendation because he believed it was acting at the behest of the opposition United National Congress (UNC.)

Kokaram said, “Unfortunately, there were some ill-advised remarks made by the Prime Minister literally on the eve of disclosing his decision which disclosed the Prime Minister’s consideration of the LATT as a tool of his political enemy and their complaint a bold political trap.”

He said a section 137 process must, from its inception, be respected and revered as an important constitutional task.

“There is absolutely no place in this process for politics or the pretence of political mileage. Without a proper explanation from the Prime Minister, those ill-advised remarks have muddied the waters of what should be a purely objective exercise of determining whether there was a prima facie case of a serious act of misconduct or inability to perform his function warranting the removal of the Chief Justice,” Kokaram said.

“For the reason that he took into account this irrelevant consideration as explained in this judgement, I have ruled that the Prime Minister’s decision on the HDC issue be remitted for his reconsideration with an open mind,” he ordered.

The judge gave a 173-page decision and provided a judgement summary which articulated his main views.

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’s complaint to the Prime Minister was the result its own investigations into allegations in media reports which highlighted several allegations against Archie, including trying to fast-track Housing Development Corporation (HDC) applications for various people.

Archie responded to the HDC allegation, saying he lobbied no one.

The association, in its judicial review claim, also argued that Dr Rowley’s decision not the refer the complaint was “illegal, unfair and procedurally improper” and that he failed to understand the significance of the impact of the allegations which has brought the administration of justice in disrepute.

However, in his decision Kokaram disagreed, saying the Prime Minister was not a conduit.

"In this case, the Prime Minister thought that the evidence did not sufficiently establish a prima facie case of judicial misconduct and even if it did, it did not warrant removal from office.

“It can be fairly summarised that the Prime Minister viewed the conduct as a lapse of judgement and does not warrant a call for the Chief Justice’s removal,” Kokaram said, adding that it was a “reasonably valued judgement entirely open to Prime Minister to so find on the documents disclosed to him, documents which were quite extensive and thoroughly researched by the LATT yet also providing conflicting legal opinions on the propriety of the Chief Justice’s conduct.

“It was perfectly open and logical for the Prime Minister to have made the conclusion that this is not the occasion for the severest sanction of a section 137 referral,” he added.

Kokaram said for the PM to have conducted his own enquires, as urged by the association, would have seen him being "dangerously close if not stepping over the boundary of a tribunal inquiry,” he said.

“In my view, the exercise of the discretion was a rational one and the Prime Minister did satisfy his common law duty of inquiry and took into account relevant considerations,” Kokaram said.

However, Kokaram admitted he was “unsettled” by the section 137 constitutional arrangement.

“Having regard to the constitutional provision, the importance of the independence of the Judiciary, the delicate balance of accountability and independence, the rule of law being upheld by a Judiciary that is free and untangled from abuse of power by the Executive, the section 137 involvement of the Prime Minister may go too far.

“The Prime Minister effectively has a whip in hand always over the Chief Justice. Not only is the Executive in the shape of the Prime Minister in a plainly partisan manner making the referral and formatting the charge but also appointing the judges to hear the charges setting up his own machinery to remove the Chief Justice,” he said.

However, Kokaram said he found comfort in the fact that the Prime Minister’s actions were subject to judicial review and the review of the court of public opinion.

In non-binding suggestions and observations, Kokaram also addressed the role of the media and its relationship with the Judiciary, as well as the possibility of mediation.

The Law Association was represented by Dr Lloyd Barnett, Rishi Dass, Elaine Green, Kyle Tacklalsingh and Imran Ali.

Representing the Prime Minister were Mark Strachan,QC, Reginald Armour,SC, Justin Phelps, Raphael Adjodha, Tenille Ramkissoon and Kendra Mark.

Senior Counsel Fyard Hosein, Sasha Bridgemohansingh and Michelle Benjamin represented the Attorney General and the Chief Justice was represented by Senior Counsel John Jeremie and Ian Benjamin, Keith Scotland, Kerwyn Garcia and Laurissa Mollenthiel.

The AG and the CJ were interested parties in the rolled-up judicial review hearing.