Following is the text of the July 27, 2019 letter written by Law Association president Douglas Mendes SC to Prime Minister Dr Keith Rowley in response to the PM’s July 22 letter to Mendes outlining the reason for not triggering impeachment proceedings on Chief Justice Ivor Archie:
I refer to your letter dated July 22, 2019 in which you conveyed to me your decision not to make a representation to Her Excellency the President under section 137 of the Constitution in relation to the Honourable Chief Justice. I refer also to the opinion of Mr Howard Stevens QC dated 25 April 2019 on which your decision appears to be primarily, if not wholly based.
The Council of the Law Association gave due consideration to your letter and Mr Stevens’ opinion at its monthly meeting held on 23rd July 2019. While we appreciate and respect the fact that the decision whether to make a representation under section 137 is yours to make, we nevertheless think it incumbent on us to draw to your attention certain methodological and analytical flaws in the advice given to you which we fear may have led you into error.
The major concern of the Law Association, as expressed in the report submitted to you and at its Special General Meeting held on the 11th December 2018, was the allegation that the Honourable Chief Justice made certain recommendations to the HDC for housing on behalf of certain applicants and followed that up with lobbying of certain senior HDC officers and your good self.
Mr Stevens was satisfied, and he so advised you, that there was evidence that the Honourable Chief Justice did in fact make recommendations to the HDC. The Chief Justice admitted in his December 2018 press release that he had done so in 2015, and Mr Brent Lyons, the Managing Director of HDC, told the Association’s Committee that he had also recommended two persons in 2013.
In addition, Mr Stevens accepted that there was evidence that the Honourable Chief Justice had “gone further than merely putting forward names for consideration” and indeed had enlisted the assistance of a friend “to intervene/seek favourable consideration on behalf of two applicants”. (para 64).
The question on which Mr Stevens was therefore required to advise you was whether such conduct amounts to misbehaviour under the Constitution. We are dissatisfied with the answer which you were advised to give.
In your letter dated 22nd July 2019, you said that:
“It would not necessarily be inappropriate, when recommending an applicant believed to be deserving of special or urgent consideration, to go further than merely putting forward the person’s name. Any communications there may have been by the Chief Justice might be justified on this basis, bearing in mind that in his press release he referred specifically to forwarding the names of ‘needy and deserving persons’.
“Be that as it may, even if the Chief Justice went further than he ought to have done in relation to any applicant, it is unlikely that it could justify removal from office, at any rate if he did not do so merely at the behest of (Kern) Romero. He might in such circumstances be criticised for a lack of judgment; but not for such serious misbehaviour as to require removal.”
The Council agrees with Mr Stevens when he says (at paragraph 40) that “there is a risk that a judge who nominates someone for State housing (however deserving the person), and in particular if the judge requests that the application be fast-tracked, may be perceived to be beholden to the Executive, not least because the discretionary grant of housing in special cases/emergencies appears to depend on the recommendation of the Housing Minister.”
Respectfully, the Council takes the view that it is certainly arguable that any recommendation made by the Honourable Chief Justice for housing constitutes misbehaviour, and more so where he follows up that recommendation with active lobbying seeking favourable treatment for his preferred candidates. Such conduct creates the dangerous perception that the Chief Justice may be beholden to the Executive to return the favour at some further date.
Furthermore, such conduct would clearly violate paragraph 3.12 of the Statements of Principles and Guidelines for Judicial Conduct which prohibits a judge from using or lending “the prestige of the judicial office to advance his private interests or those of a member of the judge’s family or of anyone else …”
Where the Honourable Chief Justice intercedes on behalf, even of the most deserving applicant for housing, it is inevitable, in the context of the deference which is paid in this country to the holders of high office, that the relevant HDC officers would pay particular attention to his preferred candidates and give them the edge over other equally deserving candidates who are not fortunate enough to have attracted the Chief Justice’s favour.
State housing in this country is in limited supply and persons in need of housing must wait in line. It is frankly unfair that any one applicant should be leapfrogged to the head of the line because he or she happens to be acquainted with the Chief Justice. Any such system promotes privilege and access, and to the extent that members of the judiciary seek preferential treatment for any one, it lowers the judiciary in the eyes of those applicants who are by-passed and no doubt consider themselves equally deserving and in need.
We regret that it appears that Mr Stevens was not sensitive to these considerations.
Moreover, Mr Stevens’ opinion, which you adopt, that the Honourable Chief Justice may only be criticised for an error of judgment, appears inconsistent with his caution that if the Honourable Chief Justice had communicated with you via WhatsApp with recommendations for housing, his “advice could differ” and that he “would want to consider matters further”.
It is also inconsistent with his clear suggestion that if the Chief Justice’s recommendations were at the behest of Mr Romero, his opinion, and presumably yours, might have been different.
Respectfully, if recommending an applicant for housing and following that up with lobbying is a mere error of judgment and not misbehaviour, it is difficult to appreciate why lobbying you or making a recommendation at the behest of someone else, would make a difference.
Council has noted your reference to the fact that Mr Stevens “has direct and specific experience in considering section 137 of the Constitution issues in our jurisdictional context”. We presume that your intention was to indicate that Mr Stevens’ opinion was for that reason to be treated with respect. What you probably did not know is that Mr Eamon Courtenay SC, whose advice differed from Mr Stevens’ in material respects, also has direct and specific experience in an identical context and indeed he recently argued and was successful in a recent case before the Caribbean Court of Justice in relation to a matter concerning allegations made against a judge of the Court of Appeal of Belize.
Faced with competing opinions on such an important issue, both of which command respect, it appears that the preferable course of action was to refer the matter to a tribunal in order that a definitive answer, one way or the other, might be given.
Be that as it may, it is plain that Mr Stevens was of the view that there could be circumstances in which a mere error of judgment on the part of the Honourable Chief Justice in making recommendations for housing could morph into misbehaviour. One such circumstance is if the Chief Justice had lobbied your good self.
The Law Association’s Committee was also of this view and therefore lamented the fact that neither you nor the Honourable Chief Justice responded to the allegation that the Chief Justice contacted you about HDC housing. Given that it would have been the easiest thing to deny the allegation if it were untrue, the concern was that the failure to deny it promptly might naturally lead to the conclusion that there was some truth to it, particularly since the Honourable Chief Justice denied some of the allegations he was asked to address, but not this one. Your belated denial of the existence of any such communication, we fear, may be insufficient to eradicate the cloud which was allowed to hang over the Honourable Chief Justice for so long. Indeed, this is a factor which, when considered along with the other matters mentioned herein, ought to have tipped the balance in favour of setting up a section 137 tribunal in order to put any lingering doubts to rest.
Another circumstance which might have led Mr Stevens to render a different opinion is if the Honourable Chief Justice had made his recommendations at the behest of Mr Romero. It is in this respect that Mr Stevens’ methodology and analysis come into sharp relief.
The Association’s Committee had concluded that it could be inferred that the Honourable Chief Justice had acted at Mr Romero’s behest because some of the persons recommended by the Chief Justice in 2015 were persons who Romero was also assisting with their applications for housing, for a fee. The evidence of the identity of the persons who were recommended came from an internal HDC email which contained a list of persons who, the email stated, the Chief Justice had recommended. As the Committee pointed out, it was unable to confirm the authenticity of the email but, as it also pointed out, one of the parties to the email had accepted that it was possible that she had sent “such an e-mail”, even though she had no particular recollection of it. The Committee noted however that Mr Brent Lyons, the HDC’s current managing director, who was asked to provide information in relation to the e-mail, never indicated that a search was conducted to determine whether such an email existed.
In this regard, Mr Stevens concluded that it was “doubtful whether in the event of an investigation by a tribunal, the evidential position in respect of the alleged e-mail or HDC’s records would change”. Respectfully, it would have been the simplest thing to remove any such doubt by asking Mr Lyons to carry out the required search.
The evidence that some of the persons in the e-mail, said to have been recommended by the Chief Justice, were being assisted by Romero came from Ms (reporter Denyse) Renne who said she had spoken to some of them and they confirmed contact with Romero. As regards this evidence, Mr Stevens simply noted that even though the persons were contactable, “there is a very real possibility (if not likelihood) that none would be prepared to confirm their involvement with Romero.”
It is plain, therefore, that Mr Stevens dismissed lines of enquiry which he clearly appreciated were important because of his judgment that they would not bear any fruit.
It is also implicit in Mr Stevens’ reasoning that if a recommendation to you or at the behest of someone else might convert an error of judgment into misbehaviour, some other similar conduct might also do so. It is in this context, no doubt, that Ms Renne’s reporting that she had it confirmed from a senior HDC manager that the Honourable Chief Justice was in contact by WhatsApp asking that certain applications be fast-tracked, was important.
Based on a conversation which I had had with a former HDC official who claimed to have witnessed a telephone call between the Chief Justice and the former HDC managing director, Ms Jearlean John, the topic of which was applicants for housing, and given that it was likely that if the Chief Justice decided to contact anyone at the HDC it would be someone in high office, the association’s Committee surmised that the senior HDC manager to whom Ms Renne spoke was indeed Ms John. Mr Stevens considered this was “clearly possible”.
As the Committee reported, although Ms John was asked frontally if she was the person to whom Ms Renne had spoken, she did not give a direct response, although plainly if she was not that person, she could easily have said so.
However, Mr Stevens also foreclosed this line of enquiry with the perfunctory conclusion, without explanation, that “the extent to which (Ms John) would be prepared to provide any further information “on the record” must be very doubtful.”
The approach which Mr Stevens took to any further lines of enquiry is problematic and betrays two fundamental errors on his part.
Firstly, despite the fact that he maintained, correctly, that it was not for you to make any determinations of fact, he nevertheless proceeded to rule out the possibility that further enquiry might in fact produce results. That went beyond the mere assessment of the quality of the evidence collected by the Law Association’s Committee, which confessed openly to its inability to compel anyone to provide it with information or to answer questions, and ventured into a factual determination of what evidence further enquiry might unearth.
Secondly, it is plain that the approach he led you to adopt was simply to assess the quality of the evidence which the Association was able to gather and to eschew any further investigation of your own.
Respectfully, Prime Minister, it cannot be that the important responsibility which the Constitution imposes on you under section 137 to hold the Chief Justice to account, limits you to such a passive role. Where serious allegations are made against the Chief Justice by a member of the public, who, like the association, has no power to compel anyone to give evidence, surely it is incumbent on you to engage in some level of enquiry of your own, such as your office would permit. Indeed, in relation to one of the other complaints, Mr Stevens advised that although it was not for you to attempt to resolve any conflicting evidence, “it would be open to (you) to seek clarification” (paragraph 32).
In this instance, it seems plain that, as Prime Minister, the question of the authenticity of the HDC e-mail could have been cleared up by your asking Mr Lyons to search the HDC’s database for the email. We are confident that Mr Lyons would have been much more forthcoming to you than he was to us. Further, it cannot be ruled out, as Mr Stevens did, that the persons listed on the e-mail would have responded to an enquiry by you as to whether Mr Romero was assisting them with their applications for housing.
Similarly, it is hard to imagine that Ms John would fail to answer a direct enquiry from you as to whether she was the senior HDC manager whom the Chief Justice is alleged to have lobbied. Despite the fact that you are on opposite ends of the political divide, we see no reason why Ms John could not be prevailed upon to assist you in resolving important issues of fact which underlay the allegations made against the Honourable Chief Justice.
For all of these reasons, Honourable Prime Minister, the Council of the Law Association respectfully disagrees with your decision.
In the event that you are minded to reconsider your decision, it is incumbent upon me to inform you that Council has also taken the decision to seek Counsel’s advice on whether any of the concerns which we have expressed herein, or any other which might occur to them, are sufficient to support an application for judicial review of your decision.
Douglas L Mendes
president of the Law Association