The Privy Coun­cil’s rul­ing in favour of Jus­tice Mar­cia Ay­ers-Cae­sar against the Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC) in­sti­gat­ed calls from at­tor­neys ask­ing for Prime Min­is­ter Stu­art Young to be­gin pro­ceed­ings to for­mal­ly in­ves­ti­gate Chief Jus­tice Ivor Archie and the JLSC.

As­sem­bly of South­ern Lawyers (ASL) head Saira Lakhan stat­ed, “This mo­ment is about the restora­tion of pub­lic trust in the ad­min­is­tra­tion of jus­tice.”

She called for the ap­pro­pri­ate con­sti­tu­tion­al re­sponse to a con­sti­tu­tion­al breach, say­ing, “It now falls to the Ho­n­ourable Prime Min­is­ter to ex­er­cise his au­thor­i­ty un­der sec­tion 137(3) and make a rep­re­sen­ta­tion to the Pres­i­dent that the mat­ter be in­ves­ti­gat­ed by an in­de­pen­dent tri­bunal; this is not a judg­ment of guilt, but a con­sti­tu­tion­al­ly man­dat­ed mech­a­nism for in­ves­ti­gat­ing se­ri­ous breach­es by high ju­di­cial of­fice hold­ers.”

This was echoed by Con­gress of the Peo­ple leader and at­tor­ney Prakash Ra­mad­har, who ad­di­tion­al­ly called for the preser­va­tion of the Privy Coun­cil. For­mer House Speak­er and at­tor­ney Nizam Mo­hammed de­scribed it as a se­ri­ous cri­sis in the ju­di­cial sys­tem and called for the en­tire JLSC that was “col­lec­tive­ly re­spon­si­ble for this fi­as­co to go.”

This whole sce­nario seems like a De­ja-vu ex­pe­ri­ence. On 19-2-2020, Jus­tice Vasheist Kokaram had to or­der then- prime min­is­ter, Dr Kei­th Row­ley, to re­con­sid­er LATT’s call to trig­ger im­peach­ment pro­ceed­ings against CJ Archie un­der Sec­tion 137 of the Con­sti­tu­tion. At that time, it was al­leged that Archie had at­tempt­ed to sway judges in­to chang­ing se­cu­ri­ty providers to a pri­vate com­pa­ny that em­ployed his friend, who had been con­vict­ed of fraud, and al­so try­ing to fast-track ap­pli­ca­tions for Hous­ing De­vel­op­ment Cor­po­ra­tion homes for peo­ple rec­om­mend­ed by him.

Will our new Prime Min­is­ter trig­ger Sec­tion 137(3)? Some in his ad­min­is­tra­tion had pre­vi­ous­ly voiced con­cerns about the ju­di­cia­ry. For­mer PM Row­ley ques­tioned how de­spite all the re­sources plugged in­to the ju­di­cia­ry, it’s still not mea­sur­ing up. Al­so, for­mer min­is­ter of na­tion­al se­cu­ri­ty Fitzger­ald Hinds men­tioned crim­i­nals hav­ing friends in the ju­di­cia­ry.

In this sil­ly sea­son, set­ting up a tri­bunal can serve as a dis­trac­tion for the pub­lic. It is left to be seen if our new PM will break tra­di­tion and con­sid­er act­ing on this when his pre­de­ces­sor once hes­i­tat­ed. He may have to con­sid­er if our coun­try can han­dle the en­su­ing spec­ta­cle that would oc­cur and be con­vinced that the high thresh­old of mis­con­duct or in­abil­i­ty en­vi­sioned by sec­tion 137 is met.

It is un­for­tu­nate that the JLSC, which is con­sti­tu­tion­al­ly giv­en the pow­er to ap­point judges, was deemed to have act­ed un­law­ful­ly in this mat­ter. Sec­tion 110 of the Con­sti­tu­tion pro­vides for the com­po­si­tion of the mem­bers of the JLSC - the CJ, who shall be the chair­man, the chair­man of the Pub­lic Ser­vice Com­mis­sion, and pres­i­den­tial ap­pointees, which in­clude a judge (ac­tive or re­tired) and two per­sons with le­gal qual­i­fi­ca­tions (one not in ac­tive prac­tice).

Where did these mem­bers go wrong? Did they find them­selves in a bind to serve jus­tice to per­sons ‘in­no­cent un­til proven guilty’ who had their mat­ters al­ready part­ly heard by the Ay­ers-Cae­sar? Were they in­ef­fi­cient in not dou­ble-check­ing can­di­dates’ in­for­ma­tion? In­ter­est­ing­ly, the PC ruled that a judge’s con­duct pri­or to ap­point­ment can trig­ger sec­tion 137 pro­ceed­ings, so the JLSC can still con­sid­er im­peach­ing Ay­ers-Cae­sar, if they are stead­fast in their con­vic­tion, or its pres­i­den­tial se­lect­ed mem­bers can of­fer their res­ig­na­tion to the Pres­i­dent, who can al­so act on her own to re­move them, if she is so in­clined.

Two weeks ago in In­dia, loads of cash were dis­cov­ered by first re­spon­ders to a fire at the home of Del­hi High Court judge Yash­want Var­ma. This has now rekin­dled po­lit­i­cal de­bate on how judges are cho­sen and dis­ci­plined. Present­ly, this task falls on the Supreme Court (SC) col­legium, a five-mem­ber body head­ed by the CJ and four most se­nior judges. Their rec­om­men­da­tions are sent to the gov­ern­ment to con­duct in­tel­li­gence back­ground checks on can­di­dates. While the gov­ern­ment can raise ob­jec­tions and queries, it is bound to ap­prove the names sub­mit­ted by the col­legium. Crit­ics claim the sys­tem is a non-trans­par­ent, closed-door af­fair with no pre­scribed norms re­gard­ing the se­lec­tion pro­ce­dure. This has long been an is­sue of con­tention be­tween the ju­di­cia­ry and the gov­ern­ment.

In 2014, Naren­dra Mo­di’s gov­ern­ment passed the Na­tion­al Ju­di­cial Ap­point­ments Com­mis­sion (NJAC) Bill in par­lia­ment, in­tend­ing for this body to re­place the col­legium in se­lect­ing judges. This would have looked more like our JLSC com­pris­ing their CJ, the two se­nior-most SC judges, the Union Law Min­is­ter, and an em­i­nent per­son to be cho­sen by the Pres­i­dent in con­sul­ta­tion with the CJ. How­ev­er, in a le­gal chal­lenge in 2015, it was struck down by the SC as un­con­sti­tu­tion­al.

It seems both In­dia and T&T are fac­ing sim­i­lar chal­lenges de­spite hav­ing dif­fer­ent ju­di­cial se­lec­tion meth­ods.