TERRENCE W FARRELL
MARCIA Ayers-Caesar, predictably, won at the Privy Council, having previously prevailed at the Court of Appeal. It is a pyrrhic victory! There are no winners here, only losers. The implication of the judgments of the Court of Appeal and the JCPC (Judicial Committee of the Privy Council) is that she is still a judge and will have to be paid as such for the last eight years during which she was engaged in litigation against the Judicial and Legal Services Commission (JLSC).
The courts exercised their minds, not for the first time, on section 137 of the Constitution, which provides for the removal of judges. In order to protect the independence of the judiciary, judges are given long tenures, protected remuneration, and, quite rightly, the process for removing a judge is made very hard indeed. There are only two grounds for removal – infirmity of mind or body or misbehaviour – which are both elastic concepts.
Moreover, there are no intermediate sanctions for disciplining a judge who might be a "little infirm" or a "little badly behaved." It is either they stay on the job or, if the tortuous process of "representation to the President that an investigation should be initiated," investigation by a tribunal, and, ultimately, adjudication by the JCPC are successfully navigated, the judge is only then subjected to the nuclear option of removal from office.
Within the narrow confines of section 137, holding judges accountable for performance and/or for conduct is extremely difficult.
As I have documented in my paper on judicial conduct to Caribbean judicial officers in Belize in 2019, there have been numerous instances of alleged judicial misconduct in the region, some of which have reached both the Privy Council and the Caribbean Court of Justice (CCJ).
Our courts, beginning with Rees v Crane, have grappled with the section 137 procedures. In my view, they have not succeeded. Apart from the Crane matter, section 137 was also invoked in respect of chief justice Sat Sharma and, more recently, in respect of Chief Justice Ivor Archie. Ayers-Caesar mirrors Rees v Crane in several respects.
This either suggests we have learned nothing over the 30 years since Crane, or there is a structural flaw which causes the JLSC to err.
There are, I think, two fundamental factors contributing to the JLSC’s error-prone decision-making. First, section 137 requires the JLSC to represent to the President that a judge ought to be investigated. In Rees v Crane, the Privy Council said that the JLSC must “be satisfied that the complaint against the judge (has) prima facie sufficient basis in fact and (is) sufficiently serious to warrant such representation; in both such respects, the commission must act fairly.”
Common sense suggests that in order to assess the validity of the complaint and its seriousness, the JLSC must itself carry out some form of investigation. It does not get affidavit evidence or summon witnesses, but it must assemble sufficient facts and data to allow it to make the assessments.
The Pr
