Privy Council asked to overturn Ayers-Caesar forced-resignation ruling

DID the Court of Appeal get it wrong when it ruled the Judicial and Legal Services Commission (JLSC), chaired by Chief Justice Ivor Archie, acted unlawfully in pressuring former chief magistrate Marcia Ayers-Caesar to resign as a High Court judge in 2017?

Five Privy Council judges have been asked to resolve this question in the JLSC’s appeal of the Appeal Court’s ruling on October 12, 2023.

Two days have been set aside for the hearing of the appeal at the apex court.

Senior Counsel Ian Benjamin, who leads the JLSC’s legal team, spent most of the morning of December 2 taking Lords Reed, Hodge and Stephens and Lady Rose and Lady Simler through the evidence of the days leading up to Ayers-Caesar’s resignation, the conversations between her and Archie, the JLSC’s discussions and its decision not engage section 137 of the Constitution, which governs the removal of judges.

He said this engagement gave effect to natural justice and protection of the law.

“Irrespective of the hats (Chief Justice or chairman of the JLSC) he was wearing, he acted responsibly, transparent and constititonally compliant in his conversations with her, which, he maintained, were not designed to threaten or coerce her as the Appeal Court wrongly found,” Benjamin submitted.

In his later submissions, he emphasised the decision taken by the JLSC and by extension the Chief Justice, in his “pastoral” role, was to cause minimum disruption to the administration of justice, while treating Ayers-Caesar with fairness and compassion. This, he said, was consistent with the Constitution.

He said the JLSC had to consider the seriousness of the situation and brought it to Ayers-Caesar's attention through the Chief Justice.

He said the Chief Justice had a duty to act responsibly so it could not be said his actions were an illegality.

“We ask the board to allow this difficult appeal that arose from regretful and unfortunate circumstances,” he submitted, maintaining that the JLSC did not act with a “malevolent motive.”

King’s Counsel Peter Knox, who leads Ayers-Caesar’s legal team, along with Senior Counsel Ramesh Lawrence Maharaj and Ronnie Bissessar, told the judges they also had to look at the mental element and determine to what extent the former chief magistrate was to be blamed.

“We are not talking, on the face of her case, a case of misbehaviour,” he added, adding that it would be presumptuous to say her actions warranted a section 137 investigation.

He also suggested there was a misunderstanding between the Chief Justice and Ayers-Caesar on the nature of her unfinished cases.

“This was unchallenged evidence.”

Knox will continue his submissions on December 3.

In their decision, the Appeal Court’s three-judge panel, comprising Justices of Appeal Allan Mendonca, Nolan Bereaux, and Alice Yorke-Soo Hon, delivered unanimous judgments declaring the JLSC’s actions “illegal” and its decision to coerce Ayers-Caesar into resigning as unconstitutional.

Ayers-Caesar had been appointed a High Court judge on April 12, 2017, but resigned 15 days later amid public backlash over 53 cases she left incomplete as a magistrate.

She alleged her resignation was forced under threat that otherwise the President woulf revoke her appointment.

The Court of Appeal ruled that Ayers-Caesar continued to hold the office of puisne judge, as her resignation was procured unlawfully. The judges ordered her resignation letter expunged from the President’s records, and directed that she be compensated for breaches of her constitutional rights.

The court also nullified the JLSC’s decision of April 27, 2017 to offer Ayers-Caesar the option to withdraw from the High Court bench or face disciplinary action.

It held that this decision was ultra vires, contravening section 137 of the Constitution.

Bereaux said the JLSC’s conduct, though driven by public-interest concerns, overstepped constitutional limits.

“The commission may have been of the mistaken view that Ayers-Caesar could resign and return to the magistracy. However, ‘well-intended’ motives cannot justify bypassing the safeguards of section 137,” he said.

The panel emphasised that such threats undermine judicial independence and constitutional processes. Mendonca noted evidence of “threats, pressure or coercion” inconsistent with claims of a voluntary resignation.

The judges criticised the JLSC’s lack of due diligence in appointing Ayers-Caesar despite her outstanding caseload. Soo Hon remarked that the commission’s failure to investigate the situation fully before her swearing-in had led to the crisis.