DEREK ACHONG

Judges can be probed and pos­si­bly re­moved un­der the Con­sti­tu­tion based on ev­i­dence of con­duct that oc­curred pri­or to their ap­point­ments.

The Law As­so­ci­a­tion of T&T (LATT) made the state­ment yes­ter­day as it weighed in on a judg­ment from the Unit­ed King­dom-based Privy Coun­cil on the short-lived ju­di­cial ap­point­ment of for­mer chief mag­is­trate Mar­cia Ay­ers-Cae­sar.

It said, “The judg­ment set­tles the ques­tion of whether the con­duct of ju­di­cial of­fi­cers pri­or to their re­spec­tive ap­point­ments can be con­sid­ered by the Ju­di­cial and Le­gal Ser­vices Com­mis­sion (JLSC) in ex­er­cis­ing its pow­ers un­der sec­tion 137 of the Con­sti­tu­tion to re­move them from of­fice.”

It not­ed that al­though the JLSC may have sought to avoid in­vok­ing the con­sti­tu­tion­al pro­vi­sion in Ay­ers-Cae­sar’s case, it act­ed un­law­ful­ly in in­stead seek­ing to pres­sure her to re­sign over the cas­es she left un­fin­ished when she took up the pro­mo­tion in 2017.

“Equal­ly im­por­tant is the rul­ing that in fo­cus­ing on pres­sur­ing Madam Jus­tice Ay­ers-Cae­sar to re­sign, rather than in­vok­ing the sec­tion 137 pro­ce­dure, the JLSC failed to af­ford her la­dy­ship an op­por­tu­ni­ty to be heard in re­la­tion to the very mat­ters on which the JLSC re­lied in pres­sur­ing her to re­sign,” it stat­ed.

Un­der the seg­ment 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.

The LATT said that the judg­ment reaf­firmed the crit­i­cal im­por­tance of ju­di­cial in­de­pen­dence and se­cu­ri­ty of tenure.

“Se­cu­ri­ty of tenure en­sures that ju­di­cial of­fi­cers are free from ex­ter­nal pres­sures and in­ter­fer­ence, whether ex­ert­ed by the ex­ec­u­tive, the JLSC which ap­points them or the Chief Jus­tice who leads them,” it said.

It claimed that what­ev­er the rea­son for the JLSC and Chief Jus­tice Ivor Archie’s fail­ure to recog­nise the im­por­tance of ju­di­cial in­de­pen­dence, it (the fail­ure) was a mat­ter of se­ri­ous con­cern.

“Equal­ly con­cern­ing is the fact that be­cause of such fail­ure, the mat­ters which gave rise to the lit­i­ga­tion be­tween Madam Jus­tice Ay­ers-Cae­sar and the JLSC re­main un­re­solved,” it 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 had left un­fin­ished when she took up the pro­mo­tion.

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

She claimed that a press re­lease an­nounc­ing her res­ig­na­tion was pre­pared by Ju­di­cia­ry staff be­fore she met with Archie to dis­cuss the sit­u­a­tion and that 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’s and the JLSC’s con­duct.

Archie and the JLSC de­nied any wrong­do­ing and claimed that 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 as 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 all 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.