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PM limited, but not powerless

Published: 
Wednesday, March 14, 2018
Legal experts as Carmona stands by CJ sabbatical
Chief Justice Ivor Archie, right, flanked by Justice Alan Mendonca, left, during the 2015 ceremonial opening of the Law term in Port-of-Spain. Mendonca has been recommended to act in Archie’s absence. PICTURE ABRAHAM DIAZ

Prime Minister Dr Keith Rowley has options to stop Chief Justice Ivor Archie from proceeding on a six months sabbatical leave approved by President Anthony Carmona, a decision which has caused a fire storm of criticism within and outside the judiciary.

These options include directing the treasury not to pay the CJ for the six months, or triggering Section 137 of the Constitution, something which the Government has maintained it would not do despite accusations in the public domain about the CJ.

As Carmona responded late Monday evening to Rowley’s request for an explanation on the authority used to grant the sabbatical leave by reaffirming his decision, legal experts maintained the President had no power to approve the sabbatical leave.

Carmona claimed there was a “legitimate expectation of the CJ,” based on the debate in Parliament on the 98th report of the Salaries Review Commission, that he was entitled to the leave.

In a brief press release late last night, Rowley said he had had the benefit of senior counsel advice after receiving the President’s response and will report to the country on the issue tomorrow after Cabinet meets.

The legal experts the T&T Guardian reached out to yesterday preferred to speak off the record, but suggested some sort of collusion between the President and the CJ.

One senior counsel said the CJ “does not report to the President but he knew he could not get the leave through the Government because they would not have approved it, so he got the President to approve it.”

The senior counsel, who has constitutional expertise, said the “President does not have any power to make decisions like the one he made. The President’s powers are limited to what is in the Constitution in respect of appointments. But the Cabinet, under section 75, has the full authority to make decisions on matters of policy.”

He explained that no report of the Salaries Review Commission is law.

“For that to be law, to be acted upon by the government, it has to be approved by the Cabinet and implemented by the Cabinet.”

However, the SRC report, as it related to sabbatical leave for judges, was not approved by the Cabinet and it’s for this reason legal authorities said the “President acted outside of his powers.”

What can happen now, legal experts added, is that the “Cabinet can decide that it is not acting upon the approval and it is not releasing funds for it.”

Legal sources said Rowley now has the authority to say the decision was “unlawful, null, void and of no effect,” and can direct the treasury not to release funds to pay the sabbatical.

“The Prime Minister cannot wash his hands and allow the President to run the country and usurp the functions of the Cabinet,” one senior counsel told the T&T Guardian.

Rowley only found out about the CJ’s sabbatical when the President’s Office wrote to him asking if he was okay with Justice Alan Mendonca being appointed to act as Chief Justice. The PM then wrote to Carmona asking on what authority he approved the sabbatical.

The Guardian was told that having deferred his departure from the country last Sunday on the request of then acting President Christine Kangaloo, the CJ was scheduled to depart for Washington today. But sources in the judiciary questioned the timing of Archie’s departure. If allowed to proceed on the sabbatical leave he will not be in the country for the swearing in of the country’s first female President Paula-Mae Weekes next week.

Ironically, Weekes was the chair of the committee set up by Archie in 2014 to look at the issue of sabbatical leave. The committee came up with a draft document and Weekes herself had applied for sabbatical leave but the request was denied by Archie. If he proceeds on the sabbatical leave, Archie will be the first judge to proceed on sabbatical leave.

KHAN: PARTING SHOT FROM PRESIDENT

Legal sources said Prime Minister Dr Keith Rowley was “quite right to raise the question as to how does this arise, because the money to pay for the judge will come out of the treasury and was this an entitlement of the judge.”

According to one legal mind, the PM had a right to be concerned because the state would be paying money to a judge who is not doing the work he is paid to do.

“Assuming there is no entitlement and the CJ goes away as planned, the Prime Minister can say to the treasury don’t pay him or he can say you have abandoned your job and direct that the CJ come and answer under Section 137.”

It is for these reasons the T&T Guardian was told the Prime Minister is not powerless in the matter.

Israel Khan SC was one of the few legal minds willing to speak on the record.

He said, “If the Prime Minister received strong legal advice that the President had no authority to grant this sabbatical, it means there was some sort of agreement between the CJ and the President to allow him to go on this sabbatical.”

He said if allowed to proceed Archie’s sabbatical will set a precedent for other judges to follow.

Khan was of the view that “both the CJ and the President have outmanoeuvred the Prime Minister.” He said what the President had done “in plain language, is indicate to the PM of this country, who is in charge of the Cabinet which governs the country and is accountable to the Parliament, in this very grey area of granting a sabbatical, that I have done it and there is nothing you can do about it.”

He said “if this is not sufficient to trigger a 137 investigation, well I do not know what will be sufficient. When you take the cumulative accusations which the CJ has not refuted and this, this is the straw that will break the camel’s back.”

Khan described it as a “parting shot from the President, who told us from day one that powers we do not believe that he has, he has.”

The CJ, he said, had not only brought the office of Chief Justice and the judiciary “into disrepute, he has brought the Office of the President into disrepute and now they are ridiculing the Prime Minister.”

But another senior counsel said “the Prime Minister must tell the country that the decision of the President is unlawful and the Government is not going to accept that.”

BACKGROUND

Chief Justice Ivor Archie wrote to President Anthony Carmona in November last year requesting the sabbatical leave, indicating that he needed time to “rest, reflect and undertake a programme of study that will have important implications for the jurisprudence of Trinidad and Tobago as well as other Caribbean states.”

He argued that “academic writing in the particular area of study that I propose to undertake is almost non-existent.” He said the Federal Judicial Centre in Washington DC had approved his application to be its visiting Foreign Judicial Fellow for a period of up to six months.

By letter dated November 6, 2017, the Director of International Judicial Relations Office at the Federal Judicial Centre Mira Gur-Arie wrote to Archie informing him that his application to the center’s Visiting Foreign Judicial Fellows Program had been accepted.

The proposed fellowship she said for a period of 4-6 months beginning in March 2018 was “acceptable.”

Two days later Archie wrote to Carmona seeking permission to be out of the jurisdiction for a six month period from March 11 to August 2018. By letter dated February 5, Carmona approved the sabbatical leave.

However, it was only when the request to the PM was made by President’s House to appoint Justice Alan Mendonca as the acting Chief Justice for the six-month period that the PM became aware that the CJ would be out of the country for the six-month period.

The PM wrote to Carmona asking for answers on his approval of the sabbatical leave.

On Monday in his response, Carmona reaffirmed his decision. On receipt of the response PM Rowley informed the country in a brief press release that he was “examining the situation and will report to the country in short order.”

SECTION 137 OF THE CONSTITUTION

Under Section 137 (3), Prime Minister Dr Keith Rowley has the power to communicate to President Anthony Carmona about investigating whether the judge/Chief Justice should be removed from office.

The process for impeachment of a judge:

The Prime Minister refers a report of misbehaviour to the President.

The President calls a tribunal of eminent judges to investigate the allegation.

The tribunal gets back to the President with the results of their investigation and, if necessary, a recommendation.

Where necessary, the matter is either handled immediately, or taken to the Judicial Committee.

.If suspension of the judge is required, it is at the President’s discretion to revoke the suspension, acting on the advice of the Prime Minister.

The last time section 137 was invoked was in 2006 under deceased Prime Minister Patrick Manning and involved then CJ Sat Sharma.

The President appointed the three-member tribunal comprising Lord Mustill, Denis Morrison and Sir Vincent Floissac to investigate allegations of misbehaviour levelled against Sharma. The Mustil report cleared the CJ of any wrong doing.

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