Trinidad PM can act on CJ impeachment- de la Bastide

(Trinidad Guardian) Prime Min­is­ter Dr Kei­th Row­ley has the pow­er to trig­ger an im­peach­ment process against Chief Jus­tice Ivor Archie al­though he may be called as a po­ten­tial wit­ness in the mat­ter, says for­mer Caribbean Court of Jus­tice pres­i­dent Michael de la Bastide.

In an in­ter­view with Guardian Me­dia, de la Bastide, a for­mer Chief Jus­tice of the Supreme Court of T&T, said the doc­trine of ne­ces­si­ty al­lows for some­one to act al­though there may be some bias or they may be in­volved in the mat­ter.

“If there is no one else who can per­form that func­tion in law the of­fice hold­er is per­mit­ted to do so. That is why it is called the doc­trine of ne­ces­si­ty,” de la Bastide said.

The oth­er op­tion which can bring an im­me­di­ate end to the mat­ter is if the Chief Jus­tice re­signs from of­fice, mak­ing the im­peach­ment process moot.

But a close as­so­ciate of Archie said that was not an op­tion as the CJ in­tends to de­fend his po­si­tion all the way to the Privy Coun­cil.

Guardian Me­dia has been re­li­ably in­formed that a top gov­ern­ment of­fi­cial had put the res­ig­na­tion op­tion on the ta­ble for the Chief Jus­tice to con­sid­er long be­fore the Law As­so­ci­a­tion of T&T’s vote and he re­fused.

A se­nior coun­sel, speak­ing on the con­di­tion of anonymi­ty, said the third op­tion of the Prime Min­is­ter not act­ing on the Law As­so­ci­a­tion’s pe­ti­tion will no doubt fur­ther erode the pub­lic’s con­fi­dence in the ad­min­is­tra­tion of jus­tice.

On Tues­day, the Law As­so­ci­a­tion mem­ber­ship vot­ed in favour of re­fer­ring an in­ves­tiga­tive re­port to the Prime Min­is­ter for him to con­sid­er whether there was suf­fi­cient ev­i­dence to ad­vise Pres­i­dent Paula-Mae Weekes to trig­ger Sec­tion 137 of the Con­sti­tu­tion.

The Prime Min­is­ter, un­der Sec­tion 137 (4), al­so has the pow­er to sus­pend the Chief Jus­tice from of­fice un­til the out­come of the tri­bunal or where the Privy Coun­cil finds that there is an in­suf­fi­cient ba­sis to re­move him from of­fice.

Among the in­for­ma­tion un­cov­ered by the in­ves­tiga­tive team was a claim that Archie had ap­proached the Prime Min­is­ter to as­sist three peo­ple to get state hous­ing from the Hous­ing De­vel­op­ment Cor­po­ra­tion in 2015. Nei­ther Archie nor the Prime Min­is­ter re­spond­ed to the claim when ap­proached by the LATT in­ves­tiga­tive team.

There was al­so ev­i­dence un­cov­ered that Archie had com­mu­ni­cat­ed with top HDC of­fi­cials to fast-track hous­ing ap­pli­ca­tions for over dozen peo­ple, who had been re­ferred to him by close per­son­al friends Dil­lian John­son and Kern Romero, two con­vict­ed fraud­sters. Romero died of an ail­ment in May and John­son fled to the UK seek­ing po­lit­i­cal asy­lum ear­li­er this year fol­low­ing an at­tempt on his life. Archie had un­suc­cess­ful­ly pe­ti­tioned the Law As­so­ci­a­tion to de­fer the LATT meet­ing on Tues­day, Guardian Me­dia learned. He had gone to court to block a sim­i­lar meet­ing ear­li­er this year and the mat­ter went all the way to the Privy Coun­cil and he lost.

The mem­ber­ship of the law body had pre­vi­ous­ly ap­proved a mo­tion of no con­fi­dence against the Chief Jus­tice over the con­tro­ver­sy re­lat­ed to the ap­point­ment of for­mer chief mag­is­trate Mar­cia Ayres-Ceasar to the High Court. Her ap­point­ment was even­tu­al­ly re­voked af­ter it was re­vealed that she left 53 mat­ters un­fin­ished in the Mag­is­trates’ Court.

The cu­mu­la­tive ef­fect of the al­le­ga­tions against the Chief Jus­tice and the po­si­tion of the Law As­so­ci­a­tion mem­ber­ship on two sig­nif­i­cant mat­ters places Archie in an awk­ward po­si­tion to pre­side over the Ju­di­cia­ry and to al­so sit as chair­man of the Ju­di­cial and Le­gal Ser­vice Com­mis­sion, the body re­spon­si­ble for the ap­point­ment of judges and mag­is­trates, among oth­er mat­ters, a top le­gal of­fice hold­er said.

Guardian Me­dia reached out to de la Bastide, who re­tired from the CCJ in 2011, for com­ment on the de­vel­op­ing con­tro­ver­sy in­volv­ing two of the na­tion’s high­est of­fice hold­ers. He said while he had not re­searched the mat­ter and could not give a con­clu­sive opin­ion, he be­lieves the Prime Min­is­ter will take le­gal ad­vice, pre­sum­ably from the At­tor­ney Gen­er­al and pri­vate coun­sel, be­fore he acts on a pe­ti­tion from the Law As­so­ci­a­tion on whether the CJ should be in­ves­ti­gat­ed for mis­be­hav­iour in of­fice.

He agreed that there was “weight in the ar­gu­ment” for the Prime Min­is­ter to re­cuse him­self from deal­ing with the is­sue, as he was a po­ten­tial wit­ness in the mat­ter and may have to give ev­i­dence at the tri­bunal in­ves­ti­gat­ing the con­duct of the Chief Jus­tice.

“But if there is no al­ter­na­tive, the mat­ter can­not go by de­fault, and there­fore he would be right in those cir­cum­stances to make a de­ci­sion in the mat­ter,” de la Bastide said.

“Bear in mind, the Prime Min­is­ter is not in­volved in the de­ter­mi­na­tion of any is­sue of im­peach­ment, all he does is set in mo­tion the ma­chin­ery by which it can be de­ter­mined by an in­de­pen­dent com­mis­sion whether there has been con­duct of such a na­ture on the part of the Chief Jus­tice that he ought to be re­moved from of­fice. That de­ter­mi­na­tion is made by the Com­mis­sion, not by the Prime Min­is­ter.”

De la Bastide said the PM does not have to per­form a de­ter­mi­na­tive role, such as de­cid­ing on guilt or not, and while the sug­ges­tion of him re­cus­ing him­self and ap­point­ing an act­ing Prime Min­is­ter to con­sid­er the mat­ter might “tech­ni­cal­ly meet the let­ter of the law” un­der Sec­tion 137 of the Con­sti­tu­tion, it was not con­sis­tent with the in­ten­tion that the “re­al Prime Min­is­ter” must make the de­ci­sion on whether to ini­ti­ate im­peach­ment pro­ceed­ings or not.

He said in a sce­nario of ap­point­ing an act­ing Prime Min­is­ter, one will won­der who in fact is mak­ing the de­ci­sion and how long should the sub­stan­tive of­fice hold­er ab­sent him­self to al­low the in­ter­im Prime Min­is­ter enough time to con­sid­er the mat­ter.

It would al­so be open for peo­ple to con­sid­er “if the de­ci­sion is ac­tu­al­ly be­ing made by him (act­ing PM) and not sim­ply be­ing used as a mouth­piece of the sub­stan­tive Prime Min­is­ter.”

“I would find at the mo­ment it is more at­trac­tive to re­ly on the doc­trine of ne­ces­si­ty rather than the ploy, if I may put it that way, of in­volv­ing an act­ing Prime Min­is­ter,” he said.

Asked whether the CJ should re­main in of­fice if the Sec­tion 137 pro­vi­sion is trig­gered, de la Bastide said he was hes­i­tant to ven­ture an opin­ion as “each case de­pends on its own facts.” How­ev­er, he not­ed that the is­sues iden­ti­fied by Guardian Me­dia, such as ero­sion of the con­fi­dence in the ad­min­is­tra­tion of jus­tice and the abil­i­ty to ap­point judges and mag­is­trates, “were in favour of sus­pen­sion.”