CJ: I LOST TRUST IN AYERS-CAESAR

CHIEF JUSTICE Ivor Archie on Tuesday said had former chief magistrate Marcia Ayers-Caesar been truthful about the number of unfinished cases she left behind, before being sworn in as a puisne judge, she would not have been in the position she is in today.

He also insisted Ayers-Caesar consented to resigning as a judge, two weeks after being sworn in, and accepted responsibility to resolve her unfinished matters by returning to the magistracy to finish her work.

He denied putting pressure on her to resign and admitted to telling her his personal view that he saw her position becoming “untenable” and that the seriousness of what she had done had the effect of misleading not just the Judicial and Legal Service Commission (JLSC), which he heads and which recommended her elevation, but also the President, who made the appointment.

He said when he met with her on April 27, 2017, when she “voluntarily” tendered her resignation to then president Anthony Carmona, he pointed out the ramifications of all she had done.

Of his own personal thoughts, Archie said, “My feeling personally was that she had lost credibility and trust and one way for her to accept responsibility was to go back and fix the matters. I did indicate that to her. Her position was really quite ugly…I was speaking to her as her boss and, till that time, as a friend."

On Tuesday Archie gave his account under cross-examination in a trial of the claim brought by the former chief magistrate who contends that on April 27, 2017, he forced her to resign.

In her lawsuit, she is claiming she was pressured by Archie and the JLSC to resign after it was disclosed she left 52 preliminary inquiries unfinished when she took up the appointment as a judge. She claims being threatened by the CJ that if she refused to resign, the JLSC would move to have the President revoke her appointment.

Ayers-Caesar was appointed on April 12, 2017 but resigned 15 days later. She is claiming the JLSC acted unlawfully in seeking her resignation, unlawfully procured said resignation and acted unlawfully in treating as effective, her purported resignation.

CJ'S TURN TO SPEAK

On Monday, Ayers-Caesar gave her testimony under cross-examination virtually from her attorneys’ chambers. On Tuesday, Archie gave his from home as he is under seven days’ quarantine.

Coughing at intervals, the CJ admitted that he had a little issue which caused an irritating cough which was exacerbated by talking. He began his testimony just before 10 am and ended just before 3 pm.

Archie said Ayers-Caesar was given the opportunity to withdraw from the high court bench and return to the magistracy to cause “minimum disruption to the administration of justice.”

He said when the JLSC met in emergency session on April 27, there were several considerations to be taken. High among them would be those defendants whose matters were in abeyance, the administration of justice and treating her fairly and compassionately.

Archie admitted to knowing that by April 11, when Ayers-Caesar was sworn in as a judge, she left incomplete cases but said they were not as she described them  mainly paper committals with no major cross-examination.

He also said at that stage, the question of her having committed a disciplinary offence did not arise. In response to Ayers-Caesar’s attorney, Ramesh Lawrence Maharaj, SC, the CJ denied being impotent to take steps to postpone her swearing-in, saying he could have made representations to both the JLSC and the president to take steps to postpone it.

“The real concern arose when we discovered it was not 28 (cases) but more than 50, and the nature of the matters were, for the most part, different from what was told to us. There was extensive cross-examination which would have had to be repeated before another magistrate.

SHE CAUSED THIS

“If the list was truthful, the claimant would not have been in this position today. It was not just the number but the complexity of the cases and the main part being extensive cross-examination,” he said.

He added that the near-riot at the magistrates’ court by people whose cases had to restart because of her elevation and the publicity it garnered did not influence him in calling the emergency meeting of the JLSC.

“I am trying to remember if I even knew about it (the fracas). It was not a major consideration. My consideration would have been discrepancy between two lists and explanations, up to that point, were to my mind, quite unsatisfactory and incredible.”

After Ayers-Caesar provided a list of 28 part-heard matters which she said was prepared by the court’s note-taking unit, the then acting chief magistrate produced one showing there were 53 unfinished cases.

Archie admitted one of the solutions he had in mind was for her to accept responsibility for what she had done and go back and fix it, "Appealing to her conscience and sense of professional responsibility.”

Archie also said in his discussions with the president, the latter expressed concern that he was induced to issue an instrument of appointment based on erroneous information “which we were still trying to get to the bottom of.”

“Not that 'We must get to the bottom of this or she must go. 'There was no discussion like that. He was concerned that he was misled. He wanted to know, was interested to know, how the matter would be resolved. He did not suggest a particular action,” Archie said, countering claims by Ayers-Caesar that Archie told her he was “under pressure” from the president to act.

“He didn’t make any suggestion. To me he was trying to get info. His role in process was finished. Naturally he was concerned about the administration of justice and that he was led to make the appointment on misleading information.”

I DIDN'T PRESSURE HER

Archie also did not accept that telling Ayers-Caesar of the JLSC’s considerations was putting undue pressure on her since the commission had not come to a decision, but had weighed the options open to it: have her resign as a judge or consider a disciplinary inquiry into her actions.

“I didn’t think I was putting undue pressure on her at all. I was implying, pointing out, she had a responsibility ethically and professionally to do something.

“As the head of an organisation one often has to have difficult conversations with persons not living up to their responsibilities in a way they should. One does have difficult conversations from time to time but I wouldn’t characterise that as putting pressure,” he said.

“I now had information and on the face of it, it was a matter that could not be lightly brushed aside.”

He also said the JLSC did not decide to take disciplinary action against her as it “had not gotten to that stage.” Archie also said the commission could not remove a judge using section 137, but admitted it wanted the situation urgently addressed.

He also said it did not have to be that day (April 27) nor did he expect her to resign immediately.

“She was a senior judicial officer, a lawyer for over three decades, I wasn’t talking to a secretary or lay person, so no, I didn’t consider that would be arm-twisting in any sort of threatening way.

"I considered I had to have a frank conversation with her and put all factors and considerations on the table,” he said, also denying he had a part in drafting her resignation letter or a media release which announced her decision. He also said he did not think he needed to give her the opportunity to consider her options when told of what the JLSC’s thoughts were on the issue and what a section 137 inquiry would entail.

“I assume she knew what her legal position was. She was a former chief magistrate. When she knew what was offered, she nodded in consent (to resign).

“I wouldn’t refuse her opportunity to get legal advice,” he said.

Archie also pointed out that if the JLSC had written to her, it would have gone on her record and that “was not a good thing for one’s career…For it to be known you had been formally written to as a precursor to disciplinary proceedings.

“I said to her personally told her I saw her position becoming untenable because of the seriousness of what she had done, which had effect of misleading, not just the commission, but his Excellency and pointing out all ramification to her,” he said.

The trial continues on Wednesday when the former secretary to the JLSC and two High Court Masters who allegedly assisted Ayers-Caesar in writing her resignation letter are expected to be cross-examined by Maharaj.