Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Out­spo­ken Se­nior Coun­sel Is­rael Khan has called on Prime Min­is­ter Stu­art Young to ini­ti­ate an in­de­pen­dent probe in­to Chief Jus­tice Ivor Archie’s con­duct in the short-lived ju­di­cial ap­point­ment of for­mer chief mag­is­trate Mar­cia Ay­ers-Cae­sar.

Af­ter stag­ing a so­lo protest call­ing for Archie to re­sign on the steps of the Hall of Jus­tice in Port-of-Spain af­ter Ay­ers-Cae­sar’s law­suit against Archie and the Ju­di­cial and Le­gal Ser­vices Com­mis­sion (JLSC) was up­held by the Unit­ed King­dom-based Privy Coun­cil, Khan took it a step fur­ther with an­oth­er sym­bol­ic and con­tro­ver­sial move yes­ter­day.

Armed with a wood­en ba­ton, Khan re­moved a framed por­trait of Archie, which hung on a wall in his Justi­tia Om­nibus Cham­bers next to pho­tographs of for­mer CJs and de­stroyed it.

“I am putting him in the dust­bin where he be­longs,” Khan said, as he re­moved Archie’s pho­to­graph from the bro­ken frame, tore it and placed it in a garbage bin on a desk.

He re­ferred to a let­ter he sent to Young on be­half of the Crim­i­nal Bar As­so­ci­a­tion (CBA), which he serves as pres­i­dent of, in which he points to the find­ings of the lo­cal courts and the Privy Coun­cil in Ay­ers-Cae­sar’s case and called on Young to in­voke Sec­tion 123 of the Con­sti­tu­tion.

Un­der that sec­tion of the Con­sti­tu­tion, judges can on­ly be re­moved for mis­be­hav­iour or their in­abil­i­ty to per­form the func­tions of the of­fice due to in­fir­mi­ty of the mind or body.

In such in­stances, a tri­bunal is ap­point­ed by the Pres­i­dent on the ad­vice of the Prime Min­is­ter in the case of the Chief Jus­tice and the JLSC for judges. The tri­bunal in­ves­ti­gates and then rec­om­mends whether the Privy Coun­cil should con­sid­er if the judge should be re­moved.

Khan was care­ful to note that he was not act­ing on his own but on be­half of the CBA.

“We are not say­ing to fire him. What we are say­ing to do is set up an in­de­pen­dent tri­bunal to find out whether he should be fired,” he said.

“We are say­ing give him the right to be heard and ex­plain why he told the pres­i­dent she (Ay­ers-Cae­sar) re­signed vol­un­tar­i­ly. Let him ex­plain why he told her that you can go back and com­plete the mat­ters in the mag­is­trate court and then we would reap­point you.”

Khan said he un­der­stood why for­mer prime min­is­ter Dr Kei­th Row­ley and Young might be op­posed to trig­ger­ing the in­de­pen­dent probe.

“What has hap­pened is the present gov­ern­ment wants a Chief Jus­tice who they can con­trol. They want a Chief Jus­tice, who is ob­lig­at­ed to them,” Khan said.

He said he hoped Archie would ac­cept re­spon­si­bil­i­ty for what tran­spired.

“You can­not just kick out a judge and now we have to pay mil­lions of dol­lars in com­pen­sa­tion ... In any oth­er coun­try, a de­cent Chief Jus­tice, who swore to up­hold the con­sti­tu­tion, would re­sign,” he said.

Asked about the is­sue at a post-Cab­i­net press brief­ing, yes­ter­day af­ter­noon, Young said it was not be­ing con­sid­ered by him and his col­leagues at this time.

“At this stage, there is noth­ing be­fore me as Prime Min­is­ter ... I have to say that we as the gov­ern­ment are not in­volved in that what­so­ev­er,” Young said.

He al­so point­ed out the case was not against Archie but the JLSC.

“What we saw com­ing out of the Privy Coun­cil was a de­ci­sion deal­ing with the JLSC, an in­de­pen­dent body, and its treat­ment of an of­fi­cer which fell un­der its purview,” he said.

Young said he would care­ful­ly con­sid­er any ma­te­r­i­al which might war­rant a probe and would on­ly make a de­ci­sion af­ter seek­ing in­de­pen­dent le­gal ad­vice.

“I cer­tain­ly won’t be ad­vis­ing my­self,” he said.

About the Case

Ay­ers-Cae­sar was ap­point­ed a High Court Judge in April 2017 but two weeks lat­er, she re­signed from the post amid pub­lic crit­i­cism over al­most 50 cas­es she left un­fin­ished when she took up the pro­mo­tion.

Ay­ers-Cae­sar then filed the law­suit in which she claimed she was pres­sured by Archie and the JLSC in­to re­sign­ing un­der the threat that her ap­point­ment would be re­voked.

She claimed a press re­lease an­nounc­ing her res­ig­na­tion was pre­pared by Ju­di­cia­ry staff be­fore she met with Archie to dis­cuss the sit­u­a­tion and she did not have any in­put.

She al­so con­tend­ed that for­mer Pres­i­dent An­tho­ny Car­mona, who is al­so a for­mer High Court Judge, re­fused to in­ter­vene af­ter she in­formed him of Archie and the JLSC’s con­duct.

Archie and the JLSC de­nied any wrong­do­ing and claimed Ay­ers-Cae­sar’s fail­ure to dis­close the full ex­tent of her un­fin­ished case­load was suf­fi­cient­ly se­ri­ous to war­rant a dis­ci­pli­nary in­quiry.

Archie had claimed that he had sug­gest­ed re­sign­ing and re­turn­ing as a mag­is­trate to com­plete the cas­es but main­tained that he did not pres­sure or threat­en her. He al­so claimed that nei­ther he nor the JLSC had the pow­er to take the ac­tion at­trib­uted to them by Ay­ers-Cae­sar.

They con­tend­ed that Ay­ers-Cae­sar ac­cept­ed re­spon­si­bil­i­ty and freely ten­dered her res­ig­na­tion with the in­ten­tion, at that time, to re­turn as a mag­is­trate to com­plete the part-heard cas­es.

While Ay­ers-Cae­sar’s case was at a pre­lim­i­nary stage, the Of­fice of the At­tor­ney Gen­er­al filed an in­ter­pre­ta­tion law­suit to help de­ter­mine what should hap­pen to her un­fin­ished case­load.

How­ev­er, most of the cas­es were restart­ed and com­plet­ed by Ay­ers-Cae­sar’s suc­ces­sor Maria Bus­by-Ear­le-Cad­dle be­fore the case was de­ter­mined by High Court Judge Car­ol Gob­in in 2020. Bus­by-Ear­le-Cad­dle was sub­se­quent­ly ap­point­ed a High Court Judge.

Jus­tice Gob­in even­tu­al­ly ruled that all the cas­es would have to be restart­ed as there is no le­gal pro­vi­sion for them to be com­plet­ed be­fore a fresh mag­is­trate.

Most, if not all, of the hand­ful of cas­es, which were put on hold pend­ing the de­ter­mi­na­tion of the case be­fore Gob­in, were com­plet­ed.

Ay­ers-Cae­sar’s law­suit was even­tu­al­ly dis­missed by High Court Judge David Har­ris lead­ing to the chal­lenge be­fore the Court of Ap­peal.

Ap­pel­late Judges Al­lan Men­don­ca, Nolan Bereaux, and Al­ice Yorke-Soo Hon wrote sep­a­rate but con­sis­tent judg­ments in which they crit­i­cised the JLSC, which is chaired by Archie, for im­prop­er­ly and il­le­gal­ly pres­sur­ing Ay­ers-Cae­sar to re­sign.

While the Privy Coun­cil, led by UK Supreme Court Pres­i­dent Lord Robert Reed, agreed with the lo­cal Ap­peal Court that Ay­ers-Cae­sar was im­prop­er­ly forced to re­sign it ruled that she could have been prop­er­ly sub­ject­ed to a Sec­tion 137 probe.

“Pres­sur­ing a judge to re­sign by hold­ing out the threat of dis­ci­pli­nary pro­ceed­ings, as the com­mis­sion did in the present case, cir­cum­vents the con­sti­tu­tion­al safe­guards laid down in sec­tion 137 and un­der­mines their pur­pose,” Lord Reed said.