Derek Achong

The Law As­so­ci­a­tion has filed its ap­peal over a judg­ment bar­ring it from con­tin­u­ing its in­ves­ti­ga­tion in­to mis­con­duct al­le­ga­tions lev­elled against Chief Jus­tice Ivor Archie.

The T&T Guardian un­der­stands the as­so­ci­a­tion’s le­gal team filed the ap­peal and cor­re­spond­ing ap­pli­ca­tion for an ur­gent hear­ing in the Court of Ap­peal Reg­istry at the Hall of Jus­tice in Port-of-Spain short­ly af­ter 2 pm yes­ter­day.

Up to late yes­ter­day, how­ev­er, the as­so­ci­a­tion had not re­ceived a date for the hear­ing of the ur­gency ap­pli­ca­tion in which it will be re­quired to con­vince an ap­pel­late judge to grant an emer­gency hear­ing be­fore a three-mem­ber ap­peal pan­el.

The as­so­ci­a­tion is seek­ing the ur­gent hear­ing in the hope it can be de­ter­mined be­fore its spe­cial gen­er­al meet­ing card­ed for next Thurs­day, in which the re­sults of its in­ter­nal in­ves­ti­ga­tion in­to the al­le­ga­tions are ex­pect­ed to be pre­sent­ed and dis­cussed. In the event the ur­gent ap­pli­ca­tion is re­ject­ed, the meet­ing will have to be post­poned.

Ac­cord­ing to the ap­peal doc­u­ments, which were ob­tained by the T&T Guardian, the as­so­ci­a­tion is claim­ing High Court Judge Na­dia Kan­ga­loo made sev­er­al er­rors in her 19-page judg­ment de­liv­ered in Archie’s favour on Tues­day. It is claim­ing Kan­ga­loo mis­in­ter­pret­ed the Con­sti­tu­tion when she ruled it did not have the pow­er to in­ves­ti­gate the al­le­ga­tions against Archie, be­fore re­fer­ring them to the Prime Min­is­ter (PM) to trig­ger an im­peach­ment tri­bunal un­der Sec­tion 137 of the Con­sti­tu­tion. Un­der the pro­ce­dure, the Prime Min­is­ter rec­om­mends that the Pres­i­dent ap­point a tri­bunal to in­ves­ti­gate the al­le­ga­tions.

The as­so­ci­a­tion is al­so claim­ing Kan­ga­loo’s re­stric­tion on its pow­er to in­ves­ti­gate al­le­ga­tions be­fore re­fer­ring them to the PM in­fringed on its and cit­i­zens’ rights to free­dom of thought and ex­pres­sion, as there is no leg­isla­tive bar to such ac­tion.

It said the court is al­lowed to re­view a de­ci­sion from the Prime Min­is­ter or the Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC) to en­gage sec­tion 137 for a Chief Jus­tice or a judge, and its in­ves­ti­ga­tion would have been ma­te­r­i­al to prov­ing whether any re­fusal to do so was il­le­gal.

“The ef­fect of the judge’s rul­ing is there­fore to ef­fec­tive­ly and/or sub­stan­tial­ly im­mu­nise de­ci­sions of the Prime Min­is­ter or JLSC from any ju­di­cial over­sight,” the as­so­ci­a­tion stat­ed.

It al­so claimed Kan­ga­loo im­prop­er­ly con­sid­ered ev­i­dence that was not raised or ad­dressed by as­so­ci­a­tion, in­clud­ing news­pa­per re­ports in which Prime Min­is­ter Dr Kei­th Row­ley claimed he was re­luc­tant to get in­volved in the de­ba­cle sur­round­ing Archie.

“These re­port­ed state­ments in the me­dia could not, with­out more, be le­git­i­mate­ly be treat­ed as no­ti­fi­ca­tion of a de­ci­sion of the Prime Min­is­ter in re­la­tion to Sec­tion 137,” the as­so­ci­a­tion said.

It al­so com­plained that Kan­ga­loo gave un­due weight to the aca­d­e­m­ic dis­cus­sions of for­mer pres­i­dent Sir El­lis Clarke, who is cred­it­ed as one of the main ar­chi­tects of the 1962 In­de­pen­dence con­sti­tu­tion. Like the news­pa­per re­ports on Row­ley’s al­leged po­si­tion, the as­so­ci­a­tion point­ed out that it was not dis­cussed in the hear­ing of Archie’s law­suit.