THE former president will remain a party in former chief magistrate Marcia Ayers-Caesar’s legal challenge of her short-lived judicial appointment.
In a ten-page majority ruling, Lords Briggs, Kitchin, Sales and Lady Black dismissed an appeal of the Attorney General against the Court of Appeal's refusal to remove former president Anthony Carmona from her lawsuit.
Lord Carnwath dissented.
Their ruling came after the judges, in November, dismissed an appeal by Chief Justice Ivor Archie, who challenged an order that he and three other members of the Judicial and Legal Services are to be cross-examined in Ayers-Caesar's lawsuit.
Ayers-Caesar’s claim against the former president concerns his decision to refuse to reverse her resignation after she told him Archie and the JLSC had pressured her to resign after the commission became aware that she left 52 preliminary inquiries unfinished when she took up an appointment as a High Court judge.
Ayers-Caesar was appointed a High Court Judge on April 12, 2017. She resigned 15 days later amid public uproar over the 52 unfinished cases.
In the majority decision, delivered on Monday, Lord Sales said because of Ayers-Caesar’s claim that her resignation was of no effect so her appointment as a judge continues to this present time, the president was the relevant person to respect that right, and was properly named as the defendant.
“If the respondent is right in her claim that she was subjected to illegitimate pressure when she tendered her resignation, such that it could not be treated as a resignation for the purposes of section 142(2), then even if the President had taken no decision himself and had personally done nothing wrong he would nonetheless be the proper defendant in relation to that claim,” Sales said.
They also held the view that the former president was a necessary defendant to the part of Ayers-Caesar’s claim in which she seeks a declaration that her resignation, on April 27, 2017, was of no effect and that she continues to be a judge.
“This is because the ongoing validity of the respondent’s appointment as a High Court judge is, under the Constitution, a matter as between the respondent and the President.
“A person’s status as a High Court Judge depends upon their continuing relationship with the President. It is the President who appoints a person as a Judge (section 104(1)), who removes a Judge from office where removal is appropriate (section 137(2)), who may suspend a Judge during an investigation (section 137(4)) and who is the recipient of any resignation by a Judge (section 142).
“It is clear, therefore, that the President is the legal person who represents the State in the context of judicial appointments,” Sales said, adding that it was not possible to sue for a declaration in the abstract, without issuing proceedings against a relevant defendant.
In his dissenting ruling, Carnwath said while he agreed the president was properly joined as a party in the proceedings, he did not agree that he had any relevant duty or power to investigate Ayers-Caesar’s letter to him alleging she was forced to resign. Carmona had responded that it would be inappropriate and outside his constitutional remit to comment on her claims or to agree to acknowledge that her removal from office was unconstitutional.
In her lawsuit, Ayers-Caesar is claiming the JLSC acted unlawfully in seeking her resignation as a judge, unlawfully procured her resignation and acted unlawfully in treating her consequent purported resignation as effective.
She also contending that the former president’s continued refusal to set aside her resignation and reinstate her as a judge is unlawful.
The former chief magistrate claims she was pressured by the JLSC to resign, in that she was told to sign an already-prepared resignation letter or her appointment would be revoked by the President. She is seeking reinstatement as well as compensation from the JLSC and the State for breaches of her constitutional rights and loss of earnings.
The Privy Council allowed herto amend her claim to include a new allegation, that she was threatened with possible investigation if she did not resign.
Appearing for Ayers-Caesar were Peter Knox, QC, and Robert Strang. Howard Stevens, SC, and Daniel Goldblatt argued the case for the AG.
The former chief magistrate is also represented by Ramesh Lawrence Maharaj, SC, Vijaya Maharaj and Ronnie Bissessar.