A pyrrhic victory

TERRENCE W FARRELL

MARCIA Ayers-Caesar, predictably, won at the Privy Council, having previously prevailed at the Court of Appeal. It is a pyrrhic victory! There are no winners here, only losers. The implication of the judgments of the Court of Appeal and the JCPC (Judicial Committee of the Privy Council) is that she is still a judge and will have to be paid as such for the last eight years during which she was engaged in litigation against the Judicial and Legal Services Commission (JLSC).

The courts exercised their minds, not for the first time, on section 137 of the Constitution, which provides for the removal of judges. In order to protect the independence of the judiciary, judges are given long tenures, protected remuneration, and, quite rightly, the process for removing a judge is made very hard indeed. There are only two grounds for removal – infirmity of mind or body or misbehaviour – which are both elastic concepts.

Moreover, there are no intermediate sanctions for disciplining a judge who might be a "little infirm" or a "little badly behaved." It is either they stay on the job or, if the tortuous process of "representation to the President that an investigation should be initiated," investigation by a tribunal, and, ultimately, adjudication by the JCPC are successfully navigated, the judge is only then subjected to the nuclear option of removal from office.

Within the narrow confines of section 137, holding judges accountable for performance and/or for conduct is extremely difficult.

As I have documented in my paper on judicial conduct to Caribbean judicial officers in Belize in 2019, there have been numerous instances of alleged judicial misconduct in the region, some of which have reached both the Privy Council and the Caribbean Court of Justice (CCJ).

Our courts, beginning with Rees v Crane, have grappled with the section 137 procedures. In my view, they have not succeeded. Apart from the Crane matter, section 137 was also invoked in respect of chief justice Sat Sharma and, more recently, in respect of Chief Justice Ivor Archie. Ayers-Caesar mirrors Rees v Crane in several respects.

This either suggests we have learned nothing over the 30 years since Crane, or there is a structural flaw which causes the JLSC to err.

There are, I think, two fundamental factors contributing to the JLSC’s error-prone decision-making. First, section 137 requires the JLSC to represent to the President that a judge ought to be investigated. In Rees v Crane, the Privy Council said that the JLSC must “be satisfied that the complaint against the judge (has) prima facie sufficient basis in fact and (is) sufficiently serious to warrant such representation; in both such respects, the commission must act fairly.”

Common sense suggests that in order to assess the validity of the complaint and its seriousness, the JLSC must itself carry out some form of investigation. It does not get affidavit evidence or summon witnesses, but it must assemble sufficient facts and data to allow it to make the assessments.

The Privy Council in Rees v Crane and again in Ayers-Caesar emphasised that the assessment process must be fair. This requires that the judge be given notice, be given ample opportunity to be heard, and that he/she may seek legal advice. The requirement for evidence collection and for fairness at the assessment stage of the process would likely lead to a process which may become lengthy and which, in our litigious culture, may be interrupted or derailed by legal action. Yet the JLSC may be concerned in a given case that it must act quickly.

This brings us to the second factor in JLSC decision-making. As the Privy Council recognises in Ayers-Caesar, the JLSC has a second important value to protect, which is public confidence in the administration of justice. In the case of Crane, the impact on public confidence was muted. (Indeed stories concerning Crane are still emerging 30 years later, and Clinton Bernard, quite deliberately I understand, never once mentions the case in his book.) In Ayers-Caesar, the impact was immediate and indeed shattering, with prisoners rioting in their holding cells on learning their matters would have to begin
de novo.

Hard cases arise when fundamental values are in conflict. In Ayers-Caesar, the JLSC implicitly subordinated the principle of fairness to the individual judge and gave primacy to shoring up public confidence in the administration of justice, which was being undermined by the effect of the part-heard matters left behind.

Both the Privy Council and the Court of Appeal noted that the motivations of the JLSC were not malign, with Bereaux JJA, who usually pulls no punches, describing them as "noble." In the result, the JLSC accomplished neither, as the attempt to get Ayers-Caesar to return to the magistracy and complete the matters failed, and the means by which it sought to do so were deemed unlawful.

Another sordid chapter in our judicial history has now been closed. But this will happen again unless we fix the root cause, which has little to do with who happens to be chief justice or members of the JLSC. In my view, reforms are needed of both the Constitution and the Judicial and Legal Services Act. The basis of the reforms must be that judicial independence is not incompatible with judicial accountability for integrity and for performance. Rees v Crane and Ayers-Caesar were not about any attack on judicial independence, but about judicial accountability, but using the only instrument available, the section 137 nuclear bomb.

In this regard it is critically important to note that the courts did not exonerate or "vindicate" Ayers-Caesar. Bereaux JJA in his Court of Appeal judgment noted: “The conduct of Ayers-Caesar J is not under review. That was properly for consideration under section 137(3) of the Constitution, if the threshold had in fact been triggered.”

The Privy Council spent several paragraphs pointing out that a judge’s conduct prior to appointment can be used to trigger section 137 proceedings, and that means that Ayers-Caesar J could have been and could still be impeached, though this is, of course, unlikely.

It is to be hoped that rather than attempt to sit on what will surely be an uncomfortable bench, she will bring her judgeship to an end, not having heard one case or delivered one judgment.

The Judicial and Legal Services Act must be amended to (1) include judges explicitly, (2) lay out a process for the assessment of the performance and conduct of judges, and (3) devise a set of intermediate, calibrated sanctions for inability to perform or for misconduct which does not rise to the threshold for triggering the nuclear option of removal.

Section 137 of the Constitution, as I have recommended before, should be amended to remove the prime minister from any process for the removal of the chief justice, and the Constitution should empower a restructured JLSC to impose intermediate, calibrated sanctions on judicial officers.

If these reforms are instituted, we will have greater success in holding judges accountable for integrity and performance, while preserving public confidence in the administration of justice.