A new controversy began brewing last night after Chief Justice Ivor Archie suddenly shelved his six-month sabbatical leave, in the face of public query by Prime Minister Dr Keith Rowley over its legality, and announced he intended to proceed on over eight months accumulated vacation leave.
The announcement triggered an almost immediate response from Supreme Court judges and other legal observers about the vacation leave entitlement of the CJ.
The 98th Salaries Review Commission Report details the leave available to the Chief Justice. It states that the CJ’s vacation leave coincides with the “court vacation” for Christmas and Easter and an additional six weeks when the Supreme Court law term closes at the end of July.
Archie’s announced intention yesterday to proceed on 35 weeks unutilised vacation came hours before the PM is due to comment on the issue.
Last week, the Office of the President had approved Archie’s approval of his own sabbatical leave to pursue a fellowship at the Federal Judicial Center in Washingtion DC, United States.
Archie’s decision to head on sabbatical followed an unprecedented position where he took the Law Association to court over the body’s role to investigate serious allegations of misconduct against him, including the recommendation of people for State-subsidised housing and change of security arrangements for judges.
Senior Counsel Martin Daly yesterday described the Chief Justice’s move as “a surrender obtained as a result of the pressure of public opinion expressed through a few resolute voices.”
Daly said the concession does not put the Chief Justice “in the clear,” and “one only hopes,” that the Government “will find the capacity to be resolute regarding the outstanding issues surrounding the office of the Chief Justice in the public interest.”
On the vacation issue, meanwhile, Senior Counsel Avory Sinanan said: “Archie gets vacation every year just like any other judge during the court vacation. That does not amount to 35 weeks. Where in his contract of employment under the Judicial and Legal Service Commission Regulation is he entitled to 35 weeks?”
Sinanan also felt Archie’s latest position was “an admission that he was not entitled to sabbatical leave under the SRC Report and that is why he is now backtracking and claiming 35 weeks.”
“If it is that he has abandoned the idea of sabbatical leave, that is almost an admission and concession that he misled the President and is now asking for 35 weeks in terms of his entitlement. Why didn’t he not apply for the 35 weeks in the first place?” he asked.
He said Archie “should not have put the country in this position. He has again brought the judiciary into disrepute. If he was interested in country in the first place he would have decided whether he was legitimately entitled to sabbatical leave.”
Sinanan said Archie had “misrepresented to the President that he was entitled to sabbatical leave which is not true.” He said although the recommendation contained in the 98th Report of the Salaries Review Commission was passed by the Parliament “it is not law.”
He said when Archie informed the President that he had a “legitimate expectation,” based on the recommendation and the statement made by MP Roodal Moonilal, the President should have said to him “go to the High Court and get an order from a judge on the issue of legitimate expectation and I will give you leave.”
As far as Sinanan is concerned, “the President cannot decide what is, or what is not legitimate expectation. That is for the High Court to decide.”
He said, “If you go to the President and you tell the President I am entitled to a sabbatical, then you have misrepresented what is your entitlement and that needs to be investigated to determine whether it constitutes misbehaviour in public office.”
Sinanan said he again believes that “the door has been opened for the Prime Minister to invoke Section 137 of the Constitution. It is not a question of locking down the Treasury, two wrongs don’t make a right. The question should be whether you should be adjudicating on matters if you make a case on a false premise.”
