The trinidad Guardian / Marcia Ayers-Caesar has threatened to take President Anthony Carmona and the Judicial and Legal Service Commission (JLSC) to court if she is not given her job as a judge back.
Ayers-Caesar said if she was not reinstated as a judge then she will be suing for compensation “for loss of office and the benefits that go with it” in addition to claims that she is entitled to be a judge. She will also be suing for the damages to her reputation.
Ayers-Caesar has signalled her intention to sue Carmona, through Attorney General Faris Al-Rawi, and the Judicial And Legal Service Commission (JLSC), which is chaired by Chief Justice Ivor Archie, in two pre-action protocol letters sent by her legal team to Carmona, Archie and Al-Rawi on Friday.
If they do not reply to the letters within 14 days, Ayers-Caesar’s legal team has signalled its intention to start legal proceedings. Ayers-Caesar’s legal team is being led by Senior Counsel Ramesh Lawrence Maharaj.
The JLSC comprises Archie, Roger Hamel-Smith, Humphrey Stollmeyer and chairman of the Public Service Commission (PSC) Maureen Manchouk.
On May 19 Ayers-Caesar wrote a tell-all letter to Carmona stating that her removal as a High Court judge is “unlawful and unconstitutional” and that she was put under pressure to resign. Ayers-Caesar said her resignation is, therefore, “of no legal effect”.
“However, the President has refused to recognise that (Ayers-Caesar’s) resignation and removal from office were of no effect. In so refusing, he has misdirected himself in law and misdirected himself as to his powers under the Constitution,” the pre-action protocol letter to Carmona states.
In March Ayers-Caesar, who became this country’s first female chief magistrate in 2010, was informed by the JLSC that she had been selected for appointment as a High Court judge. Her swearing in was scheduled for April 12.
On April 10, two days before the swearing in, Archie called Ayers-Caesar and asked her if she had any part-heard matters because “Ramdeen and them making a bacchanal”.
“(Ayers-Caesar) understood the Chief Justice to be referring to Senator Gerald Ramdeen and some members of the legal profession and the public making criticisms of judicial appointment and the manner in which appointments were being made,” the letter to the JLSC stated.
On April 11 Ayers-Caesar provided Archie with a list of 28 matters she had outstanding.
She, Avason Quinlan and Kevin Ramcharan were sworn in as judges by Carmona on April 12.
On April 25 Archie called Ayers-Caesar to a meeting with the acting Chief Magistrate Maria Earle Busby-Caddle where they produced a list showing 52 matters outstanding.
During a meeting on April 27 with Archie, Ayers-Caesar was told that the JLSC decided that either she tender her resignation as a judge or the JLSC would advise Carmona to revoke her appointment.
Ayers-Caesar was given a resignation letter and a media release which had been prepared for her to sign.
Ayers-Caesar’s resignation letter was signed by her after the JLSC decided that she must resign or it would revoke her appointment as a judge.
Pres Carmona’s actions
called into question
According to the pre-action protocol letters, the JLSC had no jurisdiction to remove Ayers-Caesar as a judge unless it complied with Section 137 of the Constitution of T&T which required that a tribunal had to be appointed to investigate whether the judge misconducted herself in office, and only the Judicial Committee of the Privy Council could have decided for her to be removed.
Ayers-Caesar’s resignation letter, therefore, had no legal effect because her removal was unconstitutional and in violation of Section 137 of the Constitution, the pre-action protocol letters stated.
In addition, since she was not given a hearing before the commission made its decision, she was denied the rules of natural justice and the protection of the law as guaranteed in Sec 4 B of the Constitution of T&T.
Archie told his administrative secretary to include in the letter of resignation a statement that Ayers-Caesar “was giving up any claim to any pension benefits as he did not want her to believe that she had accrued any benefits by virtue of her appointment as a judge for the period of two weeks”, the letter stated.
Ayers-Caesar submitted her resignation letter to Carmona that day.
Ayers-Caesar said Carmona participated in the JLSC’s “unconstitutional actions and unlawful pressure” by accepting the resignation letter.
Archie told Ayers-Caesar that he was “under pressure” from Carmona “and that the President wanted him to procure her resignation”.
“The President must have known from the very quick sequence of events that in very short order: first, the JLSC had met and decided (without hearing from the Claimant); second, the Chief Justice had had a meeting with her on 27th April; and third, she was immediately thereafter on her way to a pre-arranged meeting with him. The President therefore knew that the Claimant had been given no time for reflection or consultation but had had the choice of resignation imposed swiftly upon her,” the pre-action protocol letter to Carmona stated.
Carmona knew Ayers-Caesar’s resignation letter was “obtained by unconstitutional action and duress, and for that reason he cannot rely upon it or seek to uphold in on the basis (if such basis could exist) that he was unaware of the wrongdoing which brought it about”, the letter stated.
Ayers-Caesar is now contending that since her “purported resignation was given as a result of unconstitutional action and duress, it was null and void, or at least, she was and is entitled to revoke it”.
The pre-action protocol letters said the breaches that have taken place now allows Ayers-Caesar “to redress at common law or under Section 14 of the Constitution, including compensation for loss of office and the benefits that go with it (if she is not reinstated)”.
“Further, the failure to treat (Ayers-Caesar) fairly or in accordance with the principles of natural justice has caused her in addition great distress and loss of reputation, because it resulted in both the two media releases of 27th April 2017 and in the further media release of 9th May, 2017, which latter release made further allegations/charges against her,” the letter stated.
Archie issued a statement on April 27, the day Ayers-Caesar resigned, while the JLSC issued another on May 9.
“The result is that she has been publicly condemned in respect of a raft of allegations/charges which she was never given an opportunity to defend, and has lost her high reputation which was gained over many years of unblemished service as a Magistrate and Chief Magistrate,” it stated.
Calls and text messages to Carmona and Archie were not answered.
EXCERPTS FROM THE PRE-ACTION PROTOCOL LETTER TO THE CJ AND THE JLSC
Claimant ought to be reinstated
49. The Claimant therefore contends that as her purported resignation was given as a result of unconstitutional action and duress, it was null and void, or at least, she was and is entitled to revoke it. As said above, by her letter dated 19th May 2017, she informed the President of the unconstitutional action and unlawful pressure, and asked for his acceptance that her removal from office was unconstitutional and of no effect. She sent copies of the letter to the Chief Justice and the Defendant.
50. However, both the President and the Defendant have refused to recognise that the Claimant’s resignation and removal from office were of no effect. In so refusing, they have misdirected themselves in law and misdirected themselves as to their powers under the Constitution.
51. Further or in the alternative, the said matters entitle the Claimant to redress at common law or under s.14 of the Constitution.
52. The Claimant contends that the Defendant’s unlawful actions set out above denied her the protection of the law and thus infringed her rights protected by s.4 (b) of the Constitution.
53. She further contends that in acting as aforesaid the Defendant committed the tort of misfeasance in public office.
Misfeasance in public office
54. For the reasons set out above, the Defendant acted unlawfully in making the decision to seek the Claimant’s resignation and, in the person of the Chief Justice, by threatening that the Defendant would recommend the revocation of her appointment if she did not resign.
55. The Defendant and the Chief Justice on its behalf knew that the said conduct was unlawful, or at least, they were recklessly indifferent as to its legality. The Claimant contends that they must have known the limits to the Defendant’s powers under the Constitution and the guarantee of judicial security of tenure given by the Constitution. Alternatively, they must have realised that to act properly in the circumstances required them to take care to remind themselves of the limits of the Defendant’s power and, for that reason, if they acted as they did without knowledge of the limits then they were reckless as to the limits.
56. Further, the Defendant knew and intended that the Claimant would be injured by its actions, because it intended that the Claimant be removed from office, whether she wished it or not. Heads of Compensation
57. The Claimant’s claim for compensation will include compensation for loss of office and the benefits that go with it (if she is not reinstated). Further, the failure to treat her fairly or in accordance with the principles of natural justice has caused her in addition great distress and loss of reputation, because it resulted in the two media releases of 27th April 2017, and in the further media release of 9th May, 2017, which latter release made further allegations/charges against her. The result is that she has been publicly condemned in respect of a raft of allegations/charges she was never given an opportunity to defend, and has lost her high reputation which was gained over many years of unblemished service as a Magistrate and Chief Magistrate.
The details of the action that the Defendant is expected to take
The Defendant is required to acknowledge that the Claimant’s purported resignation as a judge of the High Court was invalid and obtained by unlawful pressure and was without constitutional effect.
The Defendant is required to recommend to the President that the Claimant be reinstated as a judge of the High Court.