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A CRUCIAL ERROR

Published: 
Sunday, June 25, 2017

Last Thursday the Guardian highlighted the fact that Chief Justice Ivor Archie admitted to an error made in a press release from the Judiciary about the decision to restart some 53 cases in the Magistrate’s Court that were previously part-heard before Marcia Ayers-Caesar.

According to the story by Derek Achong under the headline CJ admits to error about Archie’s response, through counsel Ian Roach, to Senior Counsel Anand Ramlogan’s pre-action protocol letter, it read as follows:

“It is unfortunate that you have construed the media release (which was regrettably not worded as it should have been) in the way that you have.”

Here, Archie either admitted that the press release that was issued under the seal of the Judiciary on May 25 about the May 24 meeting of stakeholders to discuss the way forward with the Ayers-Caesar part-heard matters was either an admission of his personal error for faulty vetting of the release or administrative incompetence by his staff for sending out such a release without vetting by him.

Whichever it is, it is a crucial error that has now raised the stakes in the issue of who gave instructions to the new acting Chief Magistrate Maria Busby Earle-Caddle to discontinue and restart “de novo” the proceedings in some 53 part-heard matters that were before Ayers-Caesar and are now before her.

The Director of Public Prosecutions, Roger Gaspard, has asked the acting Chief Magistrate to tread with caution in proceeding along this route.

With the statement by the Chief Justice that the incorrect press release could not constitute the basis for Ramlogan to construct a case for his client against the Judicial and Legal and Service Commission, one is left to wonder from where did the acting Chief Magistrate get her “de novo” instructions, especially since she said she “had instructions” to restart the matters.

There is another unanswered question that was posed by the DPP that relates to the actual status of Marcia Ayers-Caesar as far as the public record is concerned. Has she been permitted to access all of her cumulative leave or has she actually resigned? The general public has a right to know, quite apart from the DPP and the accused people who were before Ayers-Caesar on part-heard matters.

Because the JLSC is not accountable to Parliament to appear before the relevant Joint Select Committee to answer for their stewardship, the public will have to wait on the annual report by the Judiciary which must be laid in Parliament every year in accordance with section 66 C (2) of the Constitution which reads as follows:

“The Judicial and Legal Service Commission shall submit to the President before 1st October, in each year, commencing in the year 2000, a report on the exercise of its functions and powers in the previous year, describing the procedures followed and any criteria adopted by it in connection therewith, and the President shall cause the report to be laid within sixty days thereafter in each House.”

This matter will not go away as the timelines are clear. The report must be given to the President by October 1 and the President is required by law to cause the report to be laid in Parliament by November 30.

If the Chief Justice is admitting errors from now with the vetting process for simple press releases, he had better ensure that the vetting process for the annual report is error-free because there are many potential critics and litigants looking on from the other side of the “Great Wall of China.”

The Sunday Guardian has published, over the last two Sundays, the actual correspondence related to the Marcia Ayers-Caesar side of the story. This is going to be an epic battle that will put into the shade the Justice Crane controversy that involved the JLSC some 27 years ago.

At the same time, there is also a parallel matter involving the JLSC about its composition which is also being contested and has reached the appellate stage, while the Ayers-Caesar matter is yet to get underway in the High Court.

For the time being, the Chief Justice does not have to concern himself with any proceedings for his potential removal as the Prime Minister has made it clear that he does not intend to pursue such action. That means that the energies of the Chief Justice and the JLSC can now be turned to the legal challenges being mounted against them as by-products of the Marcia Ayers-Caesar affair.

One response has been provided to Anand Ramlogan in his matter on the jurisdiction to start cases “de novo”, while the other still has time to run for a response in the matter being handled by Ramesh Lawrence Maharaj on behalf of Marcia Ayers-Caesar.

The effect of the Dumas judgment by the Privy Council on May 8 instant has now opened the doorway for legal challenges to all authorities from the President down the line. This will become the new normal and public authorities, starting with the Prime Minister, better start getting accustomed to it because this will not be a “playground”.

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