CRISIS IN THE JUDICIARY OF TRINIDAD AND TOBAGO

CRISIS IN THE JUDICIARY OF TRINIDAD AND TOBAGO

Photo : Ivor Archie, Chief Justice

There is no doubt that there exists a deep crisis in the Judiciary of the country, a crisis which still continues since the central issue is far from over, and as yet there is no finality in the debacle.  The origins of the present crisis has to do with the appointment in April, 2017 by the Judicial and Legal Service Commission (JLSC) of former Chief Magistrate Marcia Ayers – Caesar to the “bench,” that is, being promoted from the magistracy to the High Court Judge. It was subsequently reported that she had many outstanding matters at the magistracy left unheard and which resulted in accused persons staging a protest and near riot when she was not  present to deal with their cases, and were faced with the prospect  of having their cases reheard under a different magistrate

This led to the resignation of Ms Marcia Ayers Caesar as a judge of the High Court, and her reappointment as Chief Magistrate.  Questions were raised whether she could demit office without proper procedure for the removal of High Court Judge was not followed; and whether she could resume her previous position as Chief Magistrate. The conduct of the Chief Justice Ivor Archie as chairman of the JLSC, and other members, came into question, about their handling of the appointment of Marcia Ayers-Caesar, and about whether they should have known about the part heard matters of the former Chief Magistrate.

The Law Association of Trinidad of Tobago (LATT), the body of registered attorneys of the country, got involved.  A group of lawyers requested a meeting of LATT.  They viewed the actions of the JLSC as “reckless and/or negligent in selecting the Chief Magistrate for appointment” and further “the actions and commissioners of the Chief Justice and the JLSC “seriously undermined public confidence in the administration of justice in a manner that may be irreparable.”  By majority vote at their meeting on June, 1, 2017, they expressed their lack of confidence in the Chief Justice and the JLSC. They called for the resignations of the Chief Justice and two members of the JLSC. This vote of LATT has no force in law but carry a moral weight.  The Chief Justice has already indicated he is not prepared to resign, in effect ignoring the call by LATT.

Further revelations published in the print media, of the inner workings of the Chief Justice and the JLSC on the matter, have further added to the crisis.  This has caused the Trinidad Guardian to express an editorial opinion (It’s Time For Dialogue A For A Better Judiciary June 13, 3017 p 18) to state: “We have been witnessing truly baffling events involving some of our most senior judicial leaders.  The crude pantomime involving the appointment and, soon afterward, the resignation of Chief Magistrate Marcia Ayers-Caesar for the role of High Court Judge seems to have just opened the flood gates to a series of damaging events.  This is not helped by the fact, as reported exclusively by the Sunday Guardian, we now know she claims she was effectively forced to resign.”

The editorial concluded: “Get this right and the people of Trinidad and Tobago will not only trust their justice system but will also increase their respect for our politicians and legal professionals.   Get this wrong and we move one step closer towards a less governable, more corrupt and potential failed state, with citizens having no respect for the country’s most important institutions.”

Keith Subero, afrocentric and pro-PNM columnist, wrote on the issue (Express June 12, 2017 p 12 Looking Out For Our Institutions): “and now there is the Marcia Mess and the sloppy excuses of the Judicial and Legal Service Commission (JLSC) which the Chief Justice chairs---to date, the actions of these office holders have created issues in the public domain that could affect the legitimacy  of our institutions and eventually endanger our democracy.  Office holders should be mindful always that their actions could create crises that affect the legitimacy, efficiency and effectiveness of those pillars.” Eugene Sylvester in a letter of the day (Express 12 June, 2017 p 14 Legitimacy Issue For CJ, JLSC) stated that “as one looks at the imbroglio currently consuming the leadership of our Judiciary—and can lead any rational thinking citizen to ask the question: Has our Chief Justice lost their legitimacy? I would argue in the affirmative.”

In the light of the judicial crisis the Sunday Express commissioned an opinion survey on the issue which found that the majority of respondents want the Chief Justice to apologise but was divided on if he should stay on as Chief Justice (Sunday Express 11 June, 2017 pp 1& 4-5 Just Say Sorry). It further stated that “approximately half of all respondents approve of the “no confidence” vote in the Chief Justice” and that they “agree that the lawyers’ action was a case of ‘putting the country first.’”  And Kevin Baldeosingh, former columnist with the Guardian, in a letter of the day in the same edition of the Sunday Express (Confidence in Judiciary Declining) refers to past opinion polls on the Judiciary and concluded that “C J Archie was appointed in January 2008. Despite the spike in confidence in that year the data suggest that he has since presided over the decline in confidence in the institution he heads. The various court problems triggered by Ayers-Caesar job interview are hardly likely to help.”

A Done Deal Against Marcia Ayers-Caesar

Marcia Ayers-Caesar responded to the raging controversy and debacle in the Judiciary in a lengthy letter she wrote to President Anthony Carmona and which was exclusively published in the Sunday Guardian (June 12, 2017 pp 1,3,6,7,12). On the issue of the unfinished cases at the magistracy, the issue which sparked the debacle, she wrote that “at no stage in this process was I asked about my part-heard matters or existing case load.”  She further wrote that “the Chief Justice on 28 April 2017 asked me to consider my option and I resigned “as a means of acknowledging my default “” and that “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.” She rejected the accusation that she has acted “in breach of my professional duties” or the charges “call into question my competence to be appointed as a judge” then she stated that “the termination of my appointment as a High Court judge was unlawful.” The Chief Justice and the JLSC did not only fail to follow proper procedure in the removal of Marcia Ayers-Caesar as a judge “in breach of the rules of natural justice,” but also acted unconstitutionally.  She stated that “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 resignation by the Chief Justice on behalf of the JLSC i.e. by arranging the appointment with your Excellency for me to take to you the letter of resignation. In effect, Marcia Ayers-Caesar is still a High Court judge, a point Attorney Ramesh Lawrence Maharaj has stated quite early in the matter.   

With the publication of Maria Ayers-Caesar’s letter giving her side of the affair the actions of the Chief Justice and the entire JLSC are now called into question. While the issue of how many unheard cases she had, whether it was 28 as she was informed on enquiry or 53, as is being stated, this is a minor side-issue.  The central issue is the constitutionality of the removal of Maria Ayers-Caesar as a High Court judge, and the manner in which it was executed by the Chief Justice and the JLSC. Attorney Israel Rajah Khan is the first to react in the light of the former Chief Magistrate published letter. He intends to write the Director of Public Prosecutions “to determine whether Chief Justice Ivor Archie acted improperly and whether there are grounds for him to be impeached.” (Guardian June 12, 2017 p 6 Investigate CJ For Impeachment). He further added that “she indicated to him that she had at least 28 part-heard matters and he decided, in spite of that, to recommend to the President that she become a judge. It is only when the faeces hit the fan – after the prisoners started to protest and the lawyers started to protest that she left unfinished business – it is only then he decided to use her as a scapegoat for his lack of due diligence, mismanagement and forced the lady to resign.” He agrees with Ramesh Lawrence Maharaj that Marcia Ayers-Caesar is still a judge of the High Court.  Attorney Martin Daly expressed a different position that “I don’t accept that she is a High Court judge and I don’t accept she has any powers as a magistrate.” Clearly, this issue has to be clarified – at present her status is that she is in legal limbo.

 Coupled with the Marcia Ayers-Caesar matter in the  judiciary was the issue of race which entered over the question of the selection of Justice Frank Seepersad choice by the Judiciary to hear several High Court matters involving UNC Devant Maharaj, represented by Anand Ramlogan The matters involved the property tax and whether the JLSC is legally constituted to appoint judges to the High Court   Face book users were suggesting that the race factor was involved  The Judiciary moved quickly and explained how the system operate in the selection of judges to handle cases  This did not prevent Raffique Shah (Express June, 13,2017 p 13) from accusing Indians for being responsible for the race accusations against Frank Seepersad  He wrote that “But when Mr Ramlogan, flanked by an all-Indian cast, upon emerging from the court, declared victory in a matter that was in its preliminary stage and was yet to be tested in open court, people, especially those who do not support the UNC, became suspicious” Who are the “people” who do not support the UNC who became suspicious?  Raffique Shah is referring to blacks who do not support the UNC, but  he refuses to identify them yet he can see race when the “all Indian cast” emerged from the Port-of-Spain Hall of Justice  Are Indians to mask their faces or to emerge from the High Court, not as  group, but one by one so as not to be accused of race? So “who is to blame for this racial backlash?” Shah asks and answers his question “ I submit that by their undisguised politicising of Justice Seepersad’s injunctions, Kamla Persad-Bissesser, Anand Ramlogan and Devant Maharaj  among frontline spokespersons, were responsible”  The issue of the property tax is a political issue in the country and was an issue in the national elections in 2010 :Axe the Tax  and continues to be so, so the question of “politicising” the issue cannot hold  It is easy to attack Indians as Raffique Shah has repeatedly done in his columns, with responses unpublished by the Express, instead to dealing with those, black anti-UNC people, who make these accusations

The issue of the composition of the JLSC is now to be heard in the Privy Council which will have  “to determine if the current composition of the Judicial and Legal Service Commission (JLSC) is legal” and this after the government objected to this issue being taken to the Privy Council for final determination And the Express headline Judge Exposed (June 9, 2017) of newly appointed High Court judge Kevin Ramcharan admission of “tweeting sexy talk about women bodies an porn” does not augur well for the reputation of the Judiciary

An Efficient Judiciary – The Need For Expansion

Even if these issues facing the Chief Justice and the Judicial Service Commission had not occurred there is an existing crisis in the administration of justice in the country which the present affair is now an unfortunate addendum and there is no solution in sight though these problems are rather easy to address

There is the understaffing of the Director of Public Prosecution (DPP) Even when attorneys are available and willing the reason for not expanding the office of the DPP has to do with accommodation This is a rather simple matter since we are aware that millions were expended by the Government in rental of buildings, some which were unoccupied The DPP has complained about staff travelling to Tobago and returning to Trinidad, the cost involved and suggested at an office of the DPP with permanent staff be stationed in Tobago – again this is so very easy to address and it can be done quickly and it is not addressed  One would suggest that an office of the DPP be established in central Trinidad

There is the need to establish a High Court in central Trinidad and the employment of additional judges   The People’s Partnership Government (2010-2015) had ambitious plans to expand the Judiciary by the construction of judicial complexes in various parts of the country  This was not achieved expect the establishment of a Family Court with the purchase of a convent building at half billion dollars  Once again this is not difficult to achieve In the short term an appropriate building can be rented while a judicial complex is constructed One should be able to refer matters to the High Court and get a hearing quickly and not as it is now, while cases take between six to ten years to determine and this can be achieved if there are enoufh judges to hear cases

The overload of magistracy can only be solved by a significant expansion of this level of the judiciary by the employment of more magistrates, even if it means on contract The terms conditions of magistrates have to be improved to attract attorneys to the magistracy The Attorney General has on several occasions reveal the situation in the magistracy but has never outlined any solution  Individual attorneys have written about the grim situation in the magistracy and in the criminal section of the High Court where matters take years to be heard

The grim picture was again revealed by the Attorney General Faris Al-Rawi in the House of Representatives on Friday 14th June, 2017  He stated that “in the last six years the country spent close to $40 billion in the criminal justice system and the average person was asking what was there to show in terms of efficiency” He should hace outlined how this money was spent since it could not have been on listing and hearing cases – the main function of  judiciary  In the 14 magisterial courts “there are 48 sitting magistrates, 38 of whom sit in the criminal courts, nine judges sitting in the criminal High Court and a total of 30 judges at the level of the High Court and 11 justices of appeal”   And the magistracy has to handle 126,000 to 140,000 cases in  year  with most cases up to 94% not heard and go into “the backlog” and this is added to every year This is the real crisis in the judiciary And this crisis can only be addressed by the expansion of the Judiciary and the vastly improved efficiency judiciary  At the magistracy level there is the need to work for the entire day, and even on Saturdays, until the backlog is cleared up

The Guardian editorial was accurate when it stated “it has been clear for a while that our justice system needs urgent attention  No functioning society can consider it normal that those accused of crimes can be kept in jail awaiting trial for longer than what the maximum term if the person sentence would carry if found guilty This is not only unfair but also shows that the cogs of our justice system are not working further undermining confidence in the system  The Piarco matter, as one case in the judiciary, is reflective of this crisis and remain a searing indictment of the Judiciary