–Ria Mohammed-Davidson, LLB (Hons), LEC (Hons), LLM (Harvard), Chambers of Mr. Rolston F. Nelson, S.C.
In The Judicial and Legal Service Commission v Marcia Ayers-Caesar, the Judicial Committee of the Privy Council (‘JCPC’) was confronted with the eight-year constitutional controversy surrounding the elevation of the Chief Magistrate to the High Court of Trinidad and Tobago (‘TT’). The appeal centered on section 137 of the TT Constitution under which a Judge can only be removed from office for inability to perform the functions of his/her office or for misconduct. The removal process is triggered where the Judicial and Legal Service Commission (‘JLSC’)[1] represents to the President[2] that the question of removal should be investigated. The President then appoints a tribunal to enquire into the matter and advise on whether the question of removal should be referred to the JCPC. Here the JCPC functions in an original (as opposed to appellate) jurisdiction grounded in section 4 of the Judicial Committee Act. Section 137(2) of the TT Constitution stipulates that a Judge can only be removed from office where the JCPC has so advised the President. Section 137 does reflect globally accepted norms on judicial independence. However, it is questionable whether it provides the best formula for how to judge a Judge.
In TT’s constitutional jurisprudence, the scope of section 137 was first examined over thirty years ago in Rees v Crane. Here Crane was suspended from office and a tribunal established by the President to investigate him. He was not provided with any information about the complaints made against him or given an opportunity to respond. The JCPC held that his suspension was unconstitutional. The manifest unfairness of the process was a critical factor given the relatively straightforward facts.
In Ayers-Caesar the facts were more nuanced. Ayers-Caesar resigned two weeks after being appointed as a Judge. Her appointment prompted robust public outcry over the number of part-heard cases before her as Chief Magistrate which would have to re-commence before a new magistrate. This furore led to an emergency meeting of the JLSC, convened by the Chief Justice (‘CJ’). The minutes of that meeting show that the JLSC found that the information on the scope of the backlog of part-heard cases triggered and met the threshold for disciplinary enquiry and that Ayers-Caesar should be invited to resign and return to the magistracy, failing which it would consider instituting disciplinary action under section 137. Thereafter the CJ met with Ayers-Caesar. The facts of what transpired at that meeting will remain forever unresolved, the JCPC having decided that this was not germane to its decision. What is clear is that Ayers-Caesar tendered her resignation to the President shortly after meeting with the CJ.
The question before the JCPC was whether this course of events could pass constitutional muster. The JCPC held that it could not. The unanimous judgment of the Board, delivered by Lord Reed, is structured around four holdings which traverse the themes of accountability, procedural fairness and judicial independence.
First, the JCPC held that the JLSC’s concerns about Ayers-Caesar’s ability to manage her caseload, her conduct leading up to her appointment and the effect of her conduct on public confidence, taken cumulatively, could reasonably be regarded as a matter of law as falling within the scope of section 137. It declined to express any view of whether those concerns were in fact established or whether, if established, they would suffice for removal under section 137. However, it forcefully rejected that the argument that section 137 could only cover the conduct of a Judge post-appointment, thereby overturning this aspect of the Court of Appeal’s decision. Lord Reed emphasised that the due administration of justice would not be served by such a distinction. Thus, it is clear that judicial accountability is a concept of wide import.
Second, it held that the JLSC had acted unlawfully in failing to notify Ayers-Caesar that the question of removing her was being considered, by failing to give her notice of the allegations made against her and by failing to provide her with the opportunity to answer them. This procedural unfairness violated the right to protection of the law under section 4(b) of the TT Constitution. Lord Reed rejected the JLSC’s attempt to distinguish Rees by arguing that it had merely decided that the threshold for making a representation to the President had been met. Thus, it is clear that the right to protection of the law cannot be circumvented by semantics.
Third, the JCPC acknowledged that the JLSC’s actions were prompted by an understandable desire to resolve the practical problem of the part-heard cases. However, it acted unlawfully because “pressuring a judge to resign by holding out the threat of disciplinary proceedings … circumvents the constitutional safeguards laid down in section 137 and undermines their purpose.” Fourth, it held that the JLSC brought about the Claimant’s resignation, rejecting the argument that the CJ had acted without authority, Thus, it is clear that judicial independence will triumph over seemingly noble intentions or arguments relating to agency.
Ayers-Caesar illustrates that accountability, procedural fairness and judicial independence are expansive concepts capable of varied application. However, it also shows that the section 137 process is far from ideal. Under this section the only means for holding a Judge accountable is the nuclear option of removal. There is no systematic performance appraisal process for Judges. Furthermore, the law on the grounds for removal is muddied by the JCPC’s treatment of the concepts of inability and misbehaviour.[3] Both terms have different linguistic meanings and the well-established principle that every word in a statute has a distinct meaning[4] must surely apply more forcefully to a written Constitution which is the supreme law. In addition, the multiple roles of the CJ, as (i) Chairman ex-officio of the JLSC, (ii) the person responsible for advising the President on the suspension of a Judge and (iii) the head of judicial administration, can cause practical problems. Equally problematic is the dual role of the JCPC itself as the ultimate tribunal under section 137 and as the apex court in the TT legal system. There have been calls for reform of section 137, notably by the TT Law Association. Perhaps they will bear fruit with recent efforts at constitutional reform. In the meantime, the Ayers-Caesar case will return to the High Court for an assessment of damages for the breach of her constitutional rights. It would be wise to keep an eye on this space.
Suggested Citation: Ria Mohammed-Davidson, How to Judge a Judge: Balancing Accountability, Independence and Fairness, Int’l J. Const. L. Blog, Apr. 8, 2025, at: https://www.iconnectblog.com/how-to-judge-a-judge-balancing-accountability-independence-and-fairness
[1] The Judicial and Legal Service Commission is headed by the Chief Justice and has responsibility for the appointment, promotion, transfer and discipline of judges and judicial officers and legal officers in the public service: see section 110 and 11 of the TT Constitution and the Judicial and Legal Service Act, Second Schedule.
[2] The President is the Head of State and Commander-in-Chief of the Armed Forces: see section 22 of the TT Constitution.
[3] Lawrence v Attorney General of Grenada [2007] UKPC 18, Hearing on the Report of the Chief Justice of Gibraltar 2009 [UKPC] 43 and Ayers-Caesar at [29] – [32].
[4] Ditcher v Denison 1857, 11 Moo. P.C. 346.
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