Former Chief Magistrate writes to President …”I WAS DISMISSED”

Spread the word

She kept her silence while the Chief Justice and the Judicial and Legal Service Commission (JLSC) went public on the bacchanal in the Judiciary.

Marcia Ayers-Caesar went from Chief Magistrate to High Court Judge within a month, and then after 15 days on the Bench, she “resigned” and now remains in limbo.

Ayers-Caesar has not publicly spoken about what transpired and how she ended up on the breadline. But one thing is certain, she has retained Senior Counsel and is exploring her legal options.

She has decided to submit a letter to President Anthony Carmona, detailing the entire affair and producing her side of the story.
In essence, Ayers-Caesar is contending that she was dismissed from the Judiciary, ending any debate that she had resigned.

Her letter to Carmona was very comprehensive. But does the President have any powers to deal with the contents of the letter? All he can do is send it to the Chief Justice and the JLSC for their information.

But it is clear. Ayers-Caesar is not taking this lying down and she is prepared for battle to save her reputation. This matter would end up in the courts and it would be nasty, sources say. All through this, Chief Justice Ivor Archie says he has no intention to resign despite a resolution from the Law Association to do so.

Stay tuned for more on this bacchanal.

(Below is Ayers-Caesar’s letter to the President)

His Excellency
Mr Anthony Thomas
Carmona, ORTT, SC
President of the Republic of Trinidad and Tobago
Office of the President,
St Ann’s
Port-of-Spain.

19th May, 2017

Your Excellency,

RE: Resignation as Puisne Judge of the High Court

With utmost respect, please allow me to refer to the matter at caption.

It is with a deep sense of regret and personal disquiet, that the time has come for me to place on record the circumstances under which I was made to tender my resignation, to Your Excellency, as a Puisne Judge of the High Court.

I also wish to respond to allegations made against me in public statements made by the Chief Justice and by the JLSC. I am sending a copy of this letter to the Chief Justice and the Judicial and Legal Service Commission (“JLSC”).

1. In a statement made on the day of my resignation on 27 April, 2017, the Chief Justice said: that I failed to manage the transition from the Magistracy to the High Court in a way which ensured that undue hardship was not placed on stakeholders; I had departed from established practice whereby successful candidates ensured they have fulfilled all outstanding professional obligations before advising the JLSC of their availability for appointment; and that the Chief Justice and the JLSC were not made aware of the full extent of my outstanding obligations before His Excellency fixed the date for my swearing in.

2. In a media release published on 9 May, 2017, the JLSC made a statement on the circumstances surrounding my resignation and elaborated on the charges made against me. If I may paraphrase, the JLSC’s case against me was put as follows:

1) As part of the recruitment process I would have been asked when I would be free to take up a position as a judge, given my existing professional commitments.

2) At some point during the recruitment process (it is not clear when this is said to have taken place, but it seems before the date for my swearing-in was fixed) the Chief Justice sought and received from me an assurance that I was not leaving behind a body of work that would negatively impact the Judiciary or my colleagues.

3) On 10 April, 2017, the Chief Justice contacted me to ask me about my caseload. In a conversation and in the form of a list compiled of outstanding matters part heard by me, I gave the Chief Justice an account of my existing caseload, omitting any mention of how serious each case was, listing 28 cases.

4) This account was at odds with a fuller list produced for the Chief Justice after an audit by the Acting Chief Magistrate, which suggested that I had materially and misleadingly understated the number and complexity of the cases outstanding.

5) The Chief Justice convened an emergency meeting of the JLSC on 28 April, 2017, which agree that if this was correct, it called into question my competence to assume the post of High Court Judge (and, it appears, would have been a breach of my professional duties).

6) The JLSC determined that this was sufficiently grave to warrant disciplinary proceedings, but decided to give me the option of returning to the Magistrate’s bench.

7) The Chief Justice on 28 April, 2017, asked me to consider my options and I resigned, “as a means of acknowledging my default”.
3. I wish to set out my position on these matters. In summary, there are four main points I wish to make.

4. First, my ‘resignation’ was in effect my dismissal by the JLSC. I was presented with no option but to resign, in light of what I was told the JLSC had already decided what to do about my conduct.

5. Second, at no stage before that decision was I given an opportunity to answer the charges now made publicly against me. They were not put to me before I was informed of the decision to require my resignation.

6. Third, I dispute the charges against me, and I deny that I have acted in breach of my professional duties or in a way that calls into question my competence to be appointed as a judge.

7. Fourth, I believe that the termination of my appointment as a High Court judge was unlawful.

My recruitment as a High Court judge

8. I responded to an advertisement for new applicants in April 2016 and sat an examination on 12 January, 2017. I attended an interview before the interviewing panel of the JLSC on 17 January, 2017. I attended psychometric testing on 7 February, 2017.

9. On 17 March, 2017, I was informed by the JLSC by email that I had been selected for appointment and that my swearing-in would take place in mid April. This was then changed (by email of 29 March) to 18 April 2017, and then yet again (by email on 6 April) to 12 April. At no stage in this process was I asked about my part-heard matters or existing caseload.

10. On 22 March, 2017, I dismissed 16 outstanding cases at Couva Magistrates’ Court. In the JLSC’s press statement it is said that this was unusual, with a suggestion that there was some impropriety involved. I wholly refute this. In two of the matters which were listed before me, I exercised my discretion pursuant to Section 71 (1) (a) of the Summary Courts Act, Chapter 4:20, not to impose fines on the respective defendants, however they were ordered to pay compensation to the victims in the matter. In two matters, in which there was no appearance of complainants, witnesses or state attorneys, and no reasonable explanation proffered to me for their absence, I exercised my discretion pursuant to Section 59 of the Summary Courts Act to dismiss these matters for want of prosecution. In two other matters, namely Police-v-Nizam Ali
and Police-v-Shandell Noel, in which there was no appearance of the complainants, witnesses or state attorneys, I again exercised my discretion pursuant to Section 59 and dismissed the matters. The defendants then withdrew their respective cross charges. There was also listed for hearing on that day an inquest. This matter was adjourned to another date and subsequently dismissed.

My caseload

11. On 10 April, 2017, the Chief Justice contacted me by telephone and for the first time enquired whether or not I had any part-heard matters. I indicated to him that I did and His Lordship for the first time asked me to tell him how many. I undertook to have that information available to him the next day.

12. There are two things I would say about this. First, I was surprised by the Chief Justice’s question as I assumed that he would know that an office holder at the level of Chief Magistrate would have part-heard matters. In addition, there is a Court Statistical Unit which collates monthly reports on each judicial officer and then submits them to the Chief Justice.

13. Second, it was not a straightforward task to respond quickly to the request for information. On 11 April, 2017, upon my arrival for duty at the Port-of-Spain Magistrates’ Court, I asked the Note Taking Unit there to provide me with a list of all of my matters.
(The files in respect of any matter heard by any magistrate, including the Chief Magistrate, are kept in the Note Taking Section of the respective court). The unit provided me with a list of 28 matters which simply stated the number and names of the parties. I reviewed the list and identified the status of each matter from my memory, and compiled a list which I sent that afternoon to the Chief Justice.

14. The Chief Justice called me that evening and asked me if I had sent the list. I said that I had, and he found it among his papers. He then asked me about a matter, Police v Ramchand Lutchmedial, which did not appear on my list, and I told him about the status of that matter, from my recollection. I infer from that question that he had a further source of information about my outstanding case work.

15. The next day, 12 April, 2017, I was sworn in as a High Court judge.

The circumstances of my dismissal

16. On 25 April, 2017, I attended a meeting with the Chief Justice and the Acting Chief Magistrate. The Chief Justice informed me that the Acting Chief Magistrate was in the process of compiling a list which showed that there were more outstanding matters than I had indicated in my list compiled on 11 April, 2017. The Acting Chief Magistrate said that she had spoken to some of the other magistrates who had agreed to deal collectively with the part-heard matters. The Chief Justice indicated that he was trying to find a solution to the problem of outstanding part-heard matters.

17. We agreed to meet the next day. The Acting Chief Magistrate indicated that she would continue her inquiries into any other part-heard matters outstanding and the Chief Justice advised her to forward to me the list so that I could comment on it. That night I received a list of part heard matters prepared by the Acting Chief Magistrate. There were 52 matters on the list. This was more than had been on the list I had previously sent, but because of the short notice I had been given, and the volume of my workload, I had not been able to remember all the matters when I compiled that list.

18. On 26 April, 2017, I met the Chief Justice and we were joined by Ms Pierre, his administrative secretary. Ms Pierre suggested that it was possible that I could return to the Magistracy to complete the part-heard matters. The Acting Chief Magistrate then joined us and the Chief Justice enquired as to her position. She said that she was of the view that whoever has started an enquiry must finish it. She also said that she had verified from the Arima and Couva Courts that I had no outstanding part-heard matters there. At no point did the Chief Justice ask me any questions about the matters on the revised list of 52 cases.

19. It was agreed that the parties would meet again on the following day, 27 April, 2017, at 3.30 pm. I left the meeting under the impression that the Chief Justice was interested in finding a workable solution to the matter.

20. On 27 April, 2017, I met the Chief Justice in a private audience at my request a few minutes before the scheduled meeting, to show him some legal authorities which I hoped would provide some assistance. Ms Pierre then joined us. At that point the Chief Justice informed me that the JLSC had met in an emergency meeting earlier on the day and had decided that either I tender my resignation as a judge or the JLSC would be advising the President to revoke my appointment and that I return to the Magistracy in order to complete my part-heard matters.

21. I understood the Chief Justice to be informing me that a decision was made and that I had no choice but to resign. He told me that an appointment was already sought for me to go to President’s House to deliver my resignation, a media statement announcing my resignation was already prepared for me to sign, and a separate media statement would also be released by him.

22. The Chief Justice left the meeting and went to an inner room to take a phone call. In his absence Ms Pierre came to my side and tried to console me but I was inconsolable. She said that His Lordship had told her that when I completed my part-heard matters I would be reappointed to the bench as a High Court judge.

23. The Chief Justice returned to tell me that the phone call he had just taken was from the President, who was expecting me at 5.30 pm for the purpose of submitting my resignation. He told me to accompany Ms Pierre to her office to sign the letter of resignation and media release which had been prepared for me to sign.

24. At Ms Pierre’s office she prepared for me a resignation letter and gave it to me. She also gave me a media release under my name which had already been prepared. I read both documents and when asked by Ms Pierre as to whether I was satisfied, I replied “whatever”. I then signed the resignation letter. I was distraught and I felt that I had no real choice but to sign the letter and accede to my resignation. By now it had been made clear to me that my resignation had already been orchestrated, and that this was a done deal.

25. I did not have any legal advice before I signed the resignation letter and I was not given the option to have any legal advice.
26. In the circumstances, it is clear to me my ‘resignation’ was a constructive dismissal, or rather, constructive removal from office. I was told that if I did not resign the JLSC would recommend to the President that my appointment be revoked. In the law of Trinidad and Tobago, if an employee is given the choice of resigning or being dismissed, then she is treated as having been dismissed. The same applies to office holders. The effect of the JLSC’s actions was to dismiss me from my post.

27. Further, none of the allegations justifying my removal set out in the statements of the Chief Justice and the JLSC were put to me for a response before my dismissal, and I was given no opportunity to say anything in my defence. In particular it was not put to me that I had acted unprofessionally in failing to maintain or to provide a full record of my outstanding matters, or that I had (whether intentionally or not) misled the Chief Justice and the JLSC, or that these matters would disqualify me from sitting as a High Court judge.

28. These failings are compounded now by the fact that they are presented after the event as the justification for my removal from office. The effect is that I am now publicly condemned by the JLSC for the alleged breaches without a hearing, and I am said to have acknowledged them.

My complaint

29. In the circumstances, it is my belief that my purported removal was unlawful and unconstitutional, and my resignation letter is of no legal effect.

30. By s.137 (1) of the Constitution, a judge can be removed from office only for inability to perform the functions of office, or for misbehaviour, and further, she cannot be removed except in accordance with the remaining subsections of s.137. Just focusing on this point alone, I do maintain, with great respect, that I was not guilty of anything that could sensibly be said to amount to misbehaviour (there is no question of inability to perform the functions of office), and so for this reason alone my effective removal from office was unlawful.

31. Further, by s.137(2) the President is empowered to remove a judge from office only where the question of removal for inability to perform, or misbehaviour, has been referred to the Judicial Committee, and the Judicial Committee has advised the President that she should be removed. Clearly, this has not happened here.

32. Further, by s.137(3) of the Constitution, the President cannot even refer the question of removal to the Judicial Committee unless (a) the JLSC represents to him that the matter should be investigated, (b) he then sets up a tribunal to look into it, and (c) the tribunal recommends that he should refer the question of removal to the Judicial Committee.

33. However, self-evidently none of these steps in s.137(2) and (3) were taken, and so for this further reason my removal is unlawful.
34. Finally, at all stages of the process, the requirements of the laws of natural justice must be followed. In particular, even before making a representation to the President that the question of removal be investigated, the JLSC must treat the judge fairly by informing her of the proposed representation and the matters giving rise to it, and giving her a chance to rebut them: see the famous case of Rees v Crane [1994] 2 AC 173.

35. I believe it follows that:

1) The JLSC made a decision to recommend my removal to your Excellency the President, which decision was unlawful and outside its constitutional powers, because I was not guilty of misbehaviour, and further, it set at nought the fundamental protections in s.137 of the Constitution.

2) In any event, for the same reasons, the consequent pressure put upon me by the JLSC to resign was unlawful and unconstitutional, as was the apparent orchestration of my removal by the Chief Justice on behalf of the JLSC (ie, by arranging the appointment with your Excellency for me to take to you the letter of resignation).

3) The JLSC acted in breach of the rules of natural justice in making a decision to seek my resignation, or putting me under pressure to resign, without putting the case against me or even warning me of it, and without giving me any proper opportunity to respond.

4) Your Excellency’s subsequent acceptance of my “resignation” was likewise unconstitutional, for all the same reasons.
36. Accordingly, I do respectfully ask you to consider these matters and respond to me as a matter of urgency. I ask you to acknowledge that my removal from office was unlawful and unconstitutional and can have no legal effect.

Respectfully,

Marcia Ayers-Caesar

unnamed

MARCIA AYERS=CAESAR, PRESIDENT ANTHONY CARMONA, AND CHIEF JUSTICE IVOR ARCHIE

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