KE­JAN HAYNES

Lead Ed­i­tor - News­gath­er­ing

ke­jan.haynes@guardian.co.tt

The Ju­di­cial Com­mit­tee of the Privy Coun­cil has ruled in favour of for­mer High Court judge Mar­cia Ay­ers-Cae­sar, find­ing that her res­ig­na­tion from the post was not giv­en “freely” and that it was the prod­uct of “un­law­ful pres­sure.”

“What the Chief Jus­tice told the claimant placed her un­der pres­sure to re­sign,” the judg­ment said.

In a unan­i­mous de­ci­sion de­liv­ered yes­ter­day morn­ing, the board dis­missed the ap­peal brought by Trinidad and To­ba­go’s Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC) and up­held the find­ings of the lo­cal Court of Ap­peal, which ruled that the com­mis­sion act­ed be­yond its au­thor­i­ty.

The Privy Coun­cil found that Ay­ers-Cae­sar’s res­ig­na­tion from the High Court in April 2017 was the re­sult of co­er­cion and that the JLSC’s ac­tions vi­o­lat­ed her con­sti­tu­tion­al rights.

“The com­mis­sion brought about the claimant’s res­ig­na­tion,” the judg­ment stat­ed, not­ing that the JLSC had ef­fec­tive­ly pres­sured her to step down un­der threat of dis­ci­pli­nary pro­ceed­ings.

“Pres­suris­ing 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.”

Ay­ers-Cae­sar, who was the first woman to be Chief Mag­is­trate, was ap­point­ed to the High Court bench on April 12, 2017, and left be­hind more than 50 part-heard mat­ters in the Mag­is­trates’ Court.

Fol­low­ing pub­lic crit­i­cism and con­cerns from the ju­di­cia­ry, how­ev­er, the JLSC met in an emer­gency ses­sion on April 27 that year. It de­cid­ed to give Ay­ers-Cae­sar “the op­tion of with­draw­ing from the High Court bench and re­turn­ing to the mag­is­tra­cy to dis­charge her pro­fes­sion­al re­spon­si­bil­i­ties,” and warned that “in the event she re­fus­es to with­draw, the com­mis­sion would con­sid­er in­sti­tut­ing dis­ci­pli­nary ac­tion in ac­cor­dance with sec­tion 137 of the Con­sti­tu­tion.”

The Privy Coun­cil found that this ap­proach was un­law­ful. Un­der sec­tion 137, it said judges may on­ly be re­moved for “in­abil­i­ty… or for mis­be­hav­iour,” and on­ly through a spe­cif­ic process in­volv­ing a tri­bunal and the Ju­di­cial Com­mit­tee of the Privy Coun­cil. The com­mis­sion had not fol­lowed this pro­ce­dure, nor had it giv­en Ay­ers-Cae­sar a chance to re­spond to the al­le­ga­tions, it not­ed.

“The claimant was not giv­en that op­por­tu­ni­ty,” the judg­ment stat­ed.

“The com­mis­sion did not no­ti­fy her that the ques­tion of re­mov­ing her was be­ing con­sid­ered… nor did it give her any op­por­tu­ni­ty to an­swer [the al­le­ga­tions].”

The board held that this amount­ed to a breach of her con­sti­tu­tion­al right to the “pro­tec­tion of the law” un­der sec­tion 4(b).

While the board dis­agreed with the Court of Ap­peal on one point—find­ing that the al­le­ga­tions, if proven, could fall with­in the am­bit of sec­tion 137—it stressed that this did not jus­ti­fy the JLSC’s con­duct.

“There was con­duct on the part of the claimant which was ca­pa­ble of falling with­in the scope of sec­tion 137,” the judg­ment said, but em­pha­sised that “the com­mis­sion’s de­ci­sion that the in­for­ma­tion be­fore it trig­gered and met the thresh­old for dis­ci­pli­nary en­quiry was “un­law­ful by rea­son of pro­ce­dur­al un­fair­ness.”

The board con­clud­ed that Ay­ers-Cae­sar’s res­ig­na­tion was the prod­uct of un­law­ful pres­sure.

“What the Chief Jus­tice told the claimant placed her un­der pres­sure to re­sign,” the judg­ment said, adding that she was pre­sent­ed with the “im­plic­it al­ter­na­tive of a dis­ci­pli­nary en­quiry—‘ef­fec­tive­ly the equiv­a­lent of im­peach­ment pro­ceed­ings’… It is un­sur­pris­ing that she re­spond­ed by agree­ing to re­sign.”

As a re­sult of the rul­ing, Ay­ers-Cae­sar is en­ti­tled to com­pen­sa­tion, though the ex­act amount and na­ture of that com­pen­sa­tion will be de­cid­ed by a judge of the High Court.

The Privy Coun­cil not­ed that the Court of Ap­peal had or­dered an as­sess­ment of dam­ages for the breach of Ay­ers-Cae­sar’s con­sti­tu­tion­al rights. While the judg­ment did not or­der re­in­state­ment or ex­plic­it­ly man­date back­pay, it left open the pos­si­bil­i­ty that com­pen­sa­tion could in­clude loss of earn­ings, pen­sion en­ti­tle­ments, or oth­er dam­ages based on what she would have re­ceived had she re­mained in of­fice.