Republic of Trinidad and Tobago in the High Court Of

REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV2019-03989 IN THE MATTER OF AN APPLICATION FOR LEAVE TO MAKE A CLAIM FOR JUDICIAL REVIEW PURSUANT TO PART 56.3 OF THE CIVIL PROCEEDING RULES, 1998 (AS AMENDED) AND PURSUANT TO SECTION 6 OF THE JUDICIAL REVIEW ACT, CHAP 7:08 AND IN THE MATTER OF THE CONSTITUTION AND THE JUDICIAL REVIEW ACT, CHAP 7:08 AND IN THE MATTER OF THE DECISION OF THE HONOURABLE PRIME MINISTER OF TRINIDAD AND TOBAGO CONTAINED IN HIS LETTER DATED 22ND JULY 2019 NOT TO REPRESENT TO HER EXCELLENCY THE PRESIDENT THAT THE QUESTION OF REMOVING THE HONOURABLE CHIEF JUSTICE FROM OFFICE OUGHT TO BE INVESTIGATED BETWEEN THE LAW ASSOCIATION OF TRINIDAD AND TOBAGO Claimant AND DR. KEITH ROWLEY THE PRIME MINISTER OF THE REPUBLIC OF TRINIDAD AND TOBAGO Defendant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO First Interested Party THE HONOURABLE CHIEF JUSTICE OF TRINIDAD AND TOBAGO Second Interested Party Before the Honourable Mr. Justice V. Kokaram Date of Delivery: Wednesday 19 February 2020 Page 1 of 173 Appearances: Dr. Lloyd Barnett leads Mr. Rishi Dass, Ms. Elaine Green, Mr. Keil Tacklalsingh and Mr. Kirk Bengochea instructed by Mr. Imran Ali, Attorneys at Law for the Claimant Mr. Douglas Mark Strachan QC and Mr. Reginald T.A. Armour SC lead Mr. Justin Phelps and Mr. Raphael Ajodha instructed by Ms. Tenille Ramkissoon and Mrs. Kendra Mark-Gordon, Attorneys at Law for the Defendant Mr. Fyard Hosein SC leads Ms. Sasha Bridgemohansingh instructed by Ms. Michelle Benjamin and Ms. Kristal Madhosingh, Attorneys at Law for the First Interested Party Mr. John S. Jeremie SC and Mr. Ian Benjamin SC lead Mr. Keith Scotland and Mr. Kerwyn Garcia instructed by Mr. Laurissa Mollenthiel, Attorneys at law for the Second Interested Party Page 2 of 173 TABLE OF CONTENTS Page No. Introduction 4 Part A Overview of the Claim 11 Factual Context 11 Issues 14 A “Rolled Up” Hearing 16 Pre-Action Conduct and ADR 17 Part B The Section 137 Removal Process 18 Historical Context 22 Rees v Crane 32 A Balance of Constitutional Principles 35 “Inability” and “Misbehaviour” 43 A Commonwealth Context 47 Returning Home: 71 A Societal Context 71 Trinidad and Tobago’s Statements of Principle and Guidelines 73 for Judicial Conduct A Compromise of Constitutional Principles? 74 Summary of Principles 75 Part C The Standard of Review 78 Part D The LATT’s Complaint and the Prime Minister’s Decision 99 Part E The Grounds of Challenge 126 Unlawfulness 126 Unreasonableness 126 Insufficient Inquiry 137 Fairness 144 Relevant/Irrelevant Considerations 145 Bad Faith 150 Part F Relief 151 Part G Costs 152 Part H Peace Jurisprudence- (A Non-Binding Guide) 155 Conclusion 160 Page 3 of 173 JUDGMENT “let me say that there is no such thing under this Constitution as disciplinary proceedings against a Judge. ..If a Judge is so bad that he should not continue as a Judge then you must get rid of him but a Judge must not be under any threat of being disciplined” -Mr. Ellis Clarke1 “I ask you to think of this..to look at it dispassionately…to consider what exactly is the power given to the Prime Minister and what exactly is the protection given to the Judge -Mr. Ellis Clarke “if the Prime Minister is going to have any say in the removal of the Judge by initiation or suspension or appointment of a local tribunal before it goes to the Privy Council, the suspicion will be raised in the country that that discretion is being used in a political way…it is necessary to ensure that there is no suspicion of political influence in respect of the Judge.”- Mr. G. Furness Smith2 Verbatim Notes of Proceedings of Meetings on Draft Constitution held at Queens Hall, Port of Spain 25-27th April, 1962 Introduction 1. The narrow question to be determined in these judicial review proceedings is the legality, rationality and propriety of the Prime Minister’s decision not to refer a question of the removal of the Chief Justice under section 137 of the Constitution3 to Her Excellency the President of the Republic of Trinidad and Tobago. Such a referral is the first in a three stage/tier process for the removal of a Chief Justice under our Constitution often described as “impeachment” proceedings. 2. To this extent, the three extracts quoted above from contributions made in the public 1 Constitutional Adviser to the Cabinet 2 Trinidad Incorporated Law Society 3 The Constitution of the Republic of Trinidad and Tobago Page 4 of 173 consultations for our Independence Constitution remain pertinent today some sixty (60) years later and provides some markers for this judgment. There is no constitutional provision for the disciplining of judges. The system prescribed by section 137 for the removal of a judge first begins with an Executive Prime Ministerial decision to represent to the President that the question of removal ought to be investigated. The section 137 process is designed to enshrine a fundamental constitutional pillar of an independent Judiciary insulated from the cut and thrust of politics. 3. Effectively at this first tier, the Prime Minister calls upon the President to establish a Tribunal to enquire into the matter of the judge’s removal. The Tribunal at the second tier enquires and reports on the facts to the President to recommend whether the question of removal ought to be referred to the Privy Council. If so, the Privy Council conducts the third tier inquiry to advise the President whether or not the judge should be removed. 4. However, the acts of a politician, no less than a Prime Minister, are not unusually accompanied by the controversy of politics. Similarly, the initiation of any such section 137 proceedings for a judge’s removal regardless of the merits is usually accompanied by the controversy of the damaged reputation of the judge and wider Judiciary. The subtle interplay of politics, the rule of law, the separation of powers, the independence of the Judiciary and confidence in the administration of the justice inevitably mix in the section 137 constitutional provisions providing for the Prime Minister to exercise a most important and delicate task of judicial accountability which carries the most severe of sanctions- removal. 5. Allegations of impropriety made against the Chief Justice splashed on national headlines, a vote of no confidence adopted by the Law Association of Trinidad and Tobago (LATT), restrained silence from the Chief Justice, strongly worded comments by higher courts on the need to inquire into these allegations, an investigation conducted into the conduct of the Chief Justice by the LATT. These all became the subject of a public exposé over the last three years through which the Judiciary has had to toughen its skin to bear inscrutable criticism with the publics’ demands of accountability. 6. As an institution one of the hallmarks of the service we provide of justice is Trust. Trust is an Page 5 of 173 important aspect of procedural justice as it is fundamental for the rule of law. Although public trust in our institution has historically been conferred upon this important arm of the State, it must be continuously earned as indeed continuously interrogated. Justly so. Equally, the demand for accountability gives no licence for exerting unfair pressure on the Judiciary. To do so will itself sacrifice the very principle of the independence of the Judiciary and the rule of law on the altar of accountability. As in all things there must be equanimity in balance. The right balance in inscrutable accountability on the one hand and restraining from exerting unfair or even toxic pressure on the other is to be struck at every level of the section 137 removal process. In every sense in striving to maintain a pure system of justice through the demands and rigours of a section 137 accountability mechanism, the section 137 process itself must be untainted with any illegality, irrationality or impropriety, let alone politics. 7. The body of Commonwealth law surveyed in this case suggests that section 137 was designed for the most serious cases of misconduct affecting the ability to discharge the judge’s duties warranting removal. It is seen as an important element of accountability as well as maintaining the independence of the Judiciary by preventing the harassment and interference of our judges with frivolous or minor infractions of judicial ethics. It is a constitutional provision designed to celebrate the independence of the Judiciary by ensuring its accountability but at the same time the bruising process may not only result in disaster of the sitting Judge or Chief Justice but the bruised image of institution itself. 8. The rule of law depends upon this independent Judiciary insulated from harassment or pressure, to make decisions free of fear or favour to “calmly poise the scales of justice unmoved by armed power undisturbed by the clamour of the multitude”. The price for such independence is that our Judiciary is called upon at all times to maintain the highest standards of accountability both individually and institutionally. In the midst of any controversy the Judiciary traditionally remains stoic keeping our heads when all others are demanding it4. 4 “If you can keep your head when all about you/Are losing theirs and blaming it on you,/If you can trust yourself when all men doubt you,/But make allowance for their doubting too;/If you can meet with Triumph and Disaster/And treat those two impostors just the same;/If you can bear to hear the truth you’ve spoken Twisted by knaves to make a trap for fools.

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