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DALY BREAD: Far from closed; JLSC’s damage of the Judiciary must carry consequence!

The Judicial and Legal Services Commission (JLSC) blundered when it appointed Mrs Marcia Ayers-Caesar to the office of a Judge of the High Court.

At the time of the JLSC’s decision to appoint her, Mrs Ayers-Caesar was the Chief Magistrate and had a list of unfinished cases before her. One report says over 50 such cases. Blunder is a kind word to label what has happened.

Photo: President Anthony Carmona (centre) is flanked by Magistrate Marcia Ayers-Caesar (left) and Chief Justice Ivor Archie. (Copyright Trinidad Guardian)
Photo: President Anthony Carmona (centre) is flanked by Magistrate Marcia Ayers-Caesar (left) and Chief Justice Ivor Archie.
(Copyright Trinidad Guardian)

She admitted that she had not made full disclosure of these circumstances to the JLSC and resigned from the office of Judge, expressing regret at her conduct. The JLSC then informed the public that she would be returned to the Magistracy to attend to her unfinished business.

This fiasco is so troubling that some commentators—including myself—feel that the members of the JLSC have placed themselves in an untenable position, essentially for two reasons.

The first was the JLSC’s failure to carry out its own due diligence on the readiness of the appointee to assume her new appointment. Even those who felt that the return of the appointee to the Magistracy had solved the problem, acknowledged that the JLSC must accept some responsibility for the fiasco.

With the JLSC’s lack of due diligence now exposed, I remind readers that the JLSC’s Chairman, in response to earlier criticism, assured us that rigorous processes had been followed. That assurance now lies in tatters.

The second reason the position of the JLSC is untenable is its lack of awareness of the impropriety of appointing or restoring someone to the judicial office of Magistrate after that person has admitted to providing misleading information to the JLSC.

Photo: A court gavel and miniature statute of Lady Justice.
Photo: A court gavel and miniature statute of Lady Justice.

I repeat my view that on account of that impropriety alone the members of the Commission should consider whether they could credibly continue in office. Their decision to put back Mrs Ayers-Caesar will gravely undermine confidence in the administration of justice.

This column now examines the statement of the Chairman of the JLSC, the Chief Justice, to the effect that there is nothing more to be said. The case is far from closed.

I disagree with this “case closed” attitude—which reflects a practice, now common among public officials when their improprieties or blunders are exposed—to invite the country “to move on” and let them carry on regardless, apparently contemptuous of  public disquiet.

These public officials do not even offer an apology for the blunder as a condition of moving on, as is the case with the JLSC at the moment.

In a letter to the editor of the Trinidad Express, Mr Kenneth Gordon supported the view that an explanation was required as to why a person who had misled the JLSC could return to the judicial bench.

Photo: Chief Justice Ivor Archie (centre). (Copyright News.Gov.TT)
Photo: Chief Justice Ivor Archie (centre).
(Copyright News.Gov.TT)

Mr Gordon described the Chairman’s dismissive attitude this way:

“To dismiss the serious questions which remain unanswered by his curt, ‘She has publicly articulated why she stepped down, we have issued a statement on the matter and I don’t propose saying anything more about it’ is simply not good enough, Mr Chief Justice.

“It demonstrates indifference to public opinion on whether you are right or wrong, even where this may impact negatively on serious matters of governance.”

I appear before many able and committed Judges. I am therefore distressed that it should be made to appear that they are part of a poorly governed or dysfunctional system. That is at the heart of my assertion that the JLSC has inflicted reputational damage on the Judiciary. Such damage may be compounded by the “we are above all” attitude of the head of the Judiciary.

Readers will fully appreciate that an apology cannot make amends for some improprieties or blunders when these have occurred in the exercise of public functions, particularly when the blunder will have lasting consequences. There has to be firm consequence management.

Reference to consequence management inevitably leads to the question whether the Judiciary is subject to any process of accountability, which for example would force an explanation of the now controversial overseas travels of the Chief Justice.

Photo: Chief Justice Ivor Archie (centre) is escorted to the podium by two models during the Inaugural Conference of the Caribbean Association of Judicial Officers in June 2009. (Copyright News.gov.tt)
Photo: Chief Justice Ivor Archie (centre) is escorted to the podium by two models during the Inaugural Conference of the Caribbean Association of Judicial Officers in June 2009.
(Copyright News.gov.tt)

Questions about those travels have been met with the same “like it or lump it attitude” displayed over the “restoration” of Mrs Ayers-Caesar to the Magistracy.

Will there be more revelations about this now infamous round of appointments?

Perhaps the blunders are the result of distraction away from the administrative side of the Judiciary. One might legitimately ask who is minding the judicial store as far as administrative business is concerned?

An accountability process would also bring into the open other distressing situations such as long delayed delivery of judgments.

Provided that there is a clear reservation against any institutionally driven inquiry into the judgments of the Courts, the administrative side of the Judiciary is now in sufficiently obvious trouble that mature discussion should urgently take place to seek and establish an accountability process to govern the JLSC—probably scrutiny by a Parliamentary Committee.

Photo: Chief Justice Ivor Archie.
Photo: Chief Justice Ivor Archie.

Editor’s Note: At present, the members of the Judicial and Legal Services Commission are as follows:

(Chairman) The Honourable the Chief Justice Mr Ivor Archie (ex-officio member);

(Members) Dr Marjorie Thorpe, Chairman of the Public Services Commission (ex-officio member); Justice Roger Hamel-Smith; Justice Humphrey Stollmeyer.

About Martin Daly

Martin Daly
Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago. He is chairman of the Pat Bishop Foundation, a board member of The Little Carib Theatre and Folkhouse and a steelpan music enthusiast.

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18 comments

    • Pertinent questions on the age requirement to sit on the JLSC. Should the President be responsible for answering ?about the 2 retired justices not being qualified by virtue of their age to sit on the JLSC based on the recent Privy Council ruling on a similar type issue. Who vets these appointments to ensure they meet the standards proscribed by law before they are made ?

  1. There are cogent and compelling reasons for the JLSC and the DPP to resign for this fiasco, but like a water on a crapaud’s back, neither shame nor conscience will penetrate. Trinidadians in office make a mockery of international norms in ethical behaviour. This is merely one more case in a long but apparently never-ending chain of such megalomania. I don’t know if it is a penchant for holding on to office, or merely for the money that comes with it, but apparently, the office becomes bigger than the ‘man’ in it.

    It really is disgusting to me now.

  2. To those SCs, tell me that this is the first time something of this nature took place. This has occurred before and everyone remained silent; Like everything else in this country the LAW association, SCs and judges are all playiing ‘daft to the elephant in the room which no one is talking about (race, politics and patronage) Nearly everyone appointed to the bench (Magistrates and Judges) is through political patronage. When citizens demand those they elect to govern the country are held accountable to address issues such as amend the Constitution where is needed , we will get somewhere. Other than that as the Calypsonian sang “Its’the same thing over and over” In this plural society the nonsense will continue to the lay person its about polticking no one is serious. As another judge stated toady, Mrs Ayers is not the first person to be promoted with a back log of cases. IWould it be difficult for someone to read the notes form the cae and continue as is. If fMs Ayers had died what then? Is it a judge fault a case is pending 5 – 10 years. Think people , dont get caugh up with political hype. Some people on the media according to the philosopher Hobbes “Man is evil brutish and nasty” I have often wonder what is the criteria and pay scale for some talk show host to be so crass and repugnant, instead of informed unbiased discussions

    • Earl Best

      “according to the philosopher Hobbes “Man is evil brutish and nasty””

      And that, Rossana,is precisely why we need laws. If the law says that something is to be done a certain way, to suggest that it should be done differently is ultimately to condone anarchy, which you seem to be doing here.

      “Would it be difficult for someone to read the notes form the case and continue as is. If fMs Ayers had died what then?”

      The fact is she has not died. And I imagine that the rules also prescribe what is to happen in the event she had.

      I think we have to back law and order; it is, I imagine, what the philosopher Hobbes would recommend.

    • Just because it happened before doesn’t make it right. A police officer can see you speeding 99 times and let you off, and still charge you on the hundreth time.

      “Nearly everyone appointed to the bench (Magistrates and Judges) is through political patronage.”

      In spite of the above, you will find that those unsuitable will soon show, by the quality of their judgments and will no longer rise within the profession.

  3. From a point of simplicity and the best/practical solution to the current problem, she should go back to the magistracy and complete her cases. Whether she goes back as a Judge is another story.

    • Whether she goes back or not, doesn’t solve the problem of judicial legitimacy that the judiciary now faces. Are we to continue to accept that the JLSC accounts to no one? Should all these judges dominate the JLSC? Can that not lead to bias? If it can be proven (we have created maximum leaders in all our institutions) that the other members of the JLSC are just to rubber stamp, then we have created flawed institutions, since the head of the JLSC also controls the Judiciary. And doesn’t have to declare assets too! I support the call for all members of the Judiciary to declare their assets to help restore trust and confidence in this independent arm of the government.

    • I agree with your points, Lester but I feel that we also have to be practical while the discussions occur. Action and talk.

    • Agreed. For the sake of accused persons with part heard matters, the hiring and resignations etc should be settled expeditiously.

  4. This is a sad state of affairs
    which has been hoisted on us by the drafters of our Constitution, having all these independent Commissions that are a law unto themselves. Firstly, the JLSC must be reconstituted by replacing those retired justices with laymen, one of which must chair the Commission. The present commission as constituted seems to be stacked with institutional bias and may not select the best candidate. More laypersons are needed on this Commission. Google the JLSC in the UK to see how that Commission is constituted. Secondly, no member of the judiciary should be allowed to sit on the Commission who is not willing to declare his/her assets! Why have a Chief Justice in charge of a Commission who is exempt from declaring his/her assets? What does that say about the legitimacy of the Judiciary since they are not elected by the people? Appointments can be bought and sold as there are no checks and balances against office holders.

  5. Earl Best

    They can’t want to blunder and then bluff or bluster their way out of the shit. Why do people in positions of authority in T&T always seem to feel that they are above the law?

    When you do shit, you have to get busy with toilet paper or a bottle of water and clean up your mess. Or if you’re lucky enough to have indoor toilet facilities, you flush!