Calls for probe of CJ misplaced

THE EDITOR: Since the pronouncement by the Privy Council on the Justice Marcia Ayers-Caesar issue, there have been calls in several diverse corners for an investigation into the conduct of the Chief Justice (CJ) for, among other things, his role in the Ayers-Caesar fiasco in April 2017, which led to her premature resignation, and his failure to keep separate and distinct his role as (1) chairman of the Judicial and Legal Service Commission, (2) as Chief Justice, and (3) as a senior judicial and “pastoral adviser” to Ayers-Caesar.

The esteemed Israel Khan SC has unconventionally staged a protest, with placard, at the entrance of the Hall of Justice calling for the CJ’s immediate resignation.

The Assembly of Southern Lawyers has, less dramatically, called for an investigation into the CJ’s role into the whole commission/Ayers-Caesar affair.

The Law Association of TT, in its media release (March 25) following the ruling, has acknowledged, in a somewhat guarded tone, that the failure on the part of the commission and the CJ to recognise the importance of judicial autonomy is a matter of “serious concern,” adding that the issues giving rise to the legal proceedings still remain unresolved.

Before the court of public opinion makes a pronouncement for or against the Chief Justice (he being the only person sitting from the then commission), it is imperative to be aware of the following matters:

Our apex court (which represents, in the words of the late Sir Fenton Ramsahoye in a statement dated July 9, 2015, “a judicial alliance between the people of Trinidad and Tobago and the United Kingdom,”) admirably traced the meanings of “inability” and “misbehaviour” of a judge to trigger the constitutional impeachment under section 137 in relation to the conduct in carrying out her duties; the perception created by the manner in which the judge performed her functions; and whether the office of the judge would be brought into disrepute.

The Privy Council recognised also that “public confidence in the judicial system” and “the integrity of the judiciary is of utmost importance in a modern democratic society.”

The law lords unanimously found that the judge’s conduct may have constituted “inability” to fall into the requirement needed by our President under section 137 to begin the process. This was due to (1) Justice Ayers-Caesar’s seeming inability to manage her caseload prior to her appointment, (2) her conduct in relation to those part-heard/outstanding cases leading up to her appointment as a judge, and (3) her acceptance of the appointment, leaving those outstanding matters uncompleted.

To put in simple language, this meant that the failure of Ayers-Caesar in not completing her 52 cases in the Magistrate’s Court, affecting the lives and freedoms of these accused people and not bothering to inform the commission of her backlog, but simultaneously accepting the judicial elevation, could in theory be considered unbecoming behaviour for a judge and could bring the judiciary into disrepute. It might also have affected her ability to function in her judicial role.

The above notwithstanding, after a deeper analysis of the facts/law and particularly the procedural failures (for example the failure to give the judge the opportunity to be heard in her defence), the Privy Council found, as did our local Court of Appeal, that the commission and the CJ were wrong in giving the judge two options – either withdraw from the Bench or face disciplinary action under the Constitution.

Additionally, the law lords all agreed that the CJ failed to keep separate the three roles (as outlined above) he played in this matter, in relation to the commission and to Justice Ayers-Caesar. With characteristic clarity, Lord Reed said, “What the Chief Justice told the claimant placed her under pressure to resign as the implicit alternative of a disciplinary enquiry.”

While taxpayers will now foot an enormous bill for compensation and loss of salary for the judge, at the end of the day, given the extensive analysis done by the PC on what constitutes unwarranted conduct to trigger the removal of a sitting judge of the High Court and in the circumstances of this unfortunate but isolated incident, coupled with the enormous contributions our CJ has made to the landscape of our judiciary since his appointment to the Bench, a call for his impeachment and/or an investigation into his conduct is certainly misplaced.

YASEEN AHMED

attorney