Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Out­spo­ken Se­nior Coun­sel Is­rael Khan has called on Chief Jus­tice Ivor Archie to re­sign af­ter his le­gal de­feat in a fi­nal ap­peal over for­mer chief mag­is­trate Mar­cia Ay­ers-Cae­sar’s short-lived ju­di­cial ap­point­ment.

Dressed in his usu­al court­room at­tire, Khan trad­ed his brief­case for a hand­writ­ten plac­ard yes­ter­day morn­ing as he stood de­fi­ant­ly on the steps of the Hall of Jus­tice in Port-of-Spain, which is lo­cat­ed across the road from his cham­bers.

His ac­tion came less than 24 hours af­ter the Unit­ed King­dom-based Privy Coun­cil dis­missed an ap­peal brought by Archie and the Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC), which he chairs.

While Khan chose the lo­ca­tion to grab Archie’s at­ten­tion, it is un­clear whether the mes­sage reached its in­tend­ed tar­get, as Archie’s of­fice was moved to the Wa­ter­front Ju­di­cial Cen­tre on Wright­son Road fol­low­ing the split in lo­ca­tions for the civ­il and crim­i­nal courts sev­er­al years ago.

“He must re­sign now. He is a dis­grace to the of­fice of Chief Jus­tice and to the le­gal pro­fes­sion,” Khan said.

He not­ed that the Privy Coun­cil up­held the de­ci­sion of three lo­cal Ap­peal Court judges, who ap­proved Ay­ers-Cae­sar’s le­gal chal­lenge af­ter it was ini­tial­ly re­ject­ed by a High Court judge.

“All three judges said that he used his po­si­tion to co­erce, pres­sure, or trick Ay­ers-Cae­sar, a sit­ting judge, to re­sign,” Khan said.

While he ad­mit­ted to sup­port­ing the po­lar­is­ing pro­pos­al to re­place the Privy Coun­cil with the Caribbean Court of Jus­tice (CCJ) as this coun­try’s fi­nal ap­pel­late court, he not­ed that the UK court was cor­rect in its rul­ing.

“It takes our for­mer slave mas­ters and colonis­ers to tell us what to do,” Khan said.

Khan, who serves as head of the Crim­i­nal Bar As­so­ci­a­tion (CBA), sug­gest­ed that if Archie did not re­sign will­ing­ly, the pro­ce­dure un­der Sec­tion 137 of the Con­sti­tu­tion should be in­voked.

Un­der the seg­ment of the Con­sti­tu­tion, judges can on­ly be re­moved for mis­be­hav­iour or their in­abil­i­ty to per­form the func­tions of the of­fice due to in­fir­mi­ty of the mind or body.

In such in­stances, a tri­bunal is ap­point­ed by the Pres­i­dent on the ad­vice of the Prime Min­is­ter in the case of the Chief Jus­tice and the JLSC for judges.

The tri­bunal in­ves­ti­gates and then rec­om­mends whether the Privy Coun­cil should con­sid­er if the judge should be re­moved.

“All we are ask­ing for is an in­de­pen­dent in­ves­ti­ga­tion to con­sid­er whether he should be re­moved as Chief Jus­tice,” he said.

Ay­ers-Cae­sar was ap­point­ed a High Court judge in April 2017, but two weeks lat­er, she re­signed from the post amid pub­lic crit­i­cism over al­most 50 cas­es she had left un­fin­ished when she took up the pro­mo­tion.

Ay­ers-Cae­sar then filed the law­suit in which she claimed that she was pres­sured by Archie and the JLSC in­to re­sign­ing un­der the threat that her ap­point­ment would be re­voked.

She claimed that a press re­lease an­nounc­ing her res­ig­na­tion was pre­pared by Ju­di­cia­ry staff be­fore she met with Archie to dis­cuss the sit­u­a­tion and that she did not have any in­put.

She al­so con­tend­ed that for­mer pres­i­dent An­tho­ny Car­mona, who is al­so a for­mer High Court judge, re­fused to in­ter­vene af­ter she in­formed him of Archie’s and the JLSC’s con­duct.

Archie and the JLSC de­nied any wrong­do­ing and claimed that Ay­ers-Cae­sar’s fail­ure to dis­close the full ex­tent of her un­fin­ished case­load was suf­fi­cient­ly se­ri­ous to war­rant a dis­ci­pli­nary in­quiry.

Archie had claimed that he had sug­gest­ed re­sign­ing and re­turn­ing as a mag­is­trate to com­plete the cas­es but main­tained that he did not pres­sure or threat­en her. He al­so claimed that nei­ther he nor the JLSC had the pow­er to take the ac­tion at­trib­uted to them by Ay­ers-Cae­sar.

They con­tend­ed that Ay­ers-Cae­sar ac­cept­ed re­spon­si­bil­i­ty and freely ten­dered her res­ig­na­tion with the in­ten­tion, at that time, to re­turn as a mag­is­trate to com­plete the part-heard cas­es.

While Ay­ers-Cae­sar’s case was at a pre­lim­i­nary stage, the Of­fice of the At­tor­ney Gen­er­al filed an in­ter­pre­ta­tion law­suit to help de­ter­mine what should hap­pen to her un­fin­ished case­load.

How­ev­er, most of the cas­es were restart­ed and com­plet­ed by Ay­ers-Cae­sar’s suc­ces­sor, Maria Bus­by-Ear­le-Cad­dle, be­fore the case was de­ter­mined by High Court Judge Car­ol Gob­in in 2020. Bus­by-Ear­le-Cad­dle was sub­se­quent­ly ap­point­ed as a High Court judge.

Jus­tice Gob­in even­tu­al­ly ruled that all the cas­es would have to be restart­ed, as there is no le­gal pro­vi­sion for them to be com­plet­ed be­fore a fresh mag­is­trate.

Most, if not all, of the hand­ful of cas­es, which were put on hold pend­ing the de­ter­mi­na­tion of the case be­fore Gob­in, were com­plet­ed.

Ay­ers-Cae­sar’s law­suit was even­tu­al­ly dis­missed by High Court Judge David Har­ris, lead­ing to the chal­lenge be­fore the Court of Ap­peal.

Ap­pel­late judges Al­lan Men­don­ca, Nolan Bereaux, and Al­ice Yorke-Soo Hon all wrote sep­a­rate but con­sis­tent judg­ments in which they crit­i­cised the JLSC, which is chaired by Archie, for im­prop­er­ly and il­le­gal­ly pres­sur­ing Ay­ers-Cae­sar to re­sign.

While the Privy Coun­cil, led by UK Supreme Court pres­i­dent Lord Robert Reed, agreed with the lo­cal Ap­peal Court that Ay­ers-Cae­sar was im­prop­er­ly forced to re­sign, it ruled that she could have been prop­er­ly sub­ject­ed to a Sec­tion 137 probe.

“Pres­sur­ing a judge to re­sign by hold­ing out the threat of dis­ci­pli­nary pro­ceed­ings, as the com­mis­sion did in the present case, cir­cum­vents the con­sti­tu­tion­al safe­guards laid down in sec­tion 137 and un­der­mines their pur­pose,” Lord Reed said.