Derek Achong

A mag­is­trate has filed a law­suit against the Ju­di­cial and Le­gal Ser­vices Com­mis­sion (JLSC) over be­ing al­leged­ly by­passed for pro­mo­tion due to a pro­tract­ed dis­ci­pli­nary com­plaint. 

Guardian Me­dia un­der­stands that lawyers rep­re­sent­ing Mag­is­trate Sarah De Sil­va filed the ju­di­cial re­view law­suit against the JLSC and the Of­fice of the At­tor­ney Gen­er­al in late De­cem­ber dur­ing the Ju­di­cia­ry’s an­nu­al Christ­mas va­ca­tion pe­ri­od.

De Sil­va’s lawyers are claim­ing that she was treat­ed un­fair­ly con­trary to the prin­ci­ples of nat­ur­al jus­tice. 

De Sil­va served as a pros­e­cu­tor in the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) for eight years be­fore she was even­tu­al­ly ap­point­ed a mag­is­trate in April 2018. She took up the ap­point­ment de­spite hav­ing a pend­ing job ap­pli­ca­tion to be a High Court Mas­ter. 

While she con­tin­ued to par­tic­i­pate in the rig­or­ous re­cruit­ment process for the high­er po­si­tion, De Sil­va was called up­on to re­spond to a com­plaint from a To­ba­go ho­tel over her con­duct as a mag­is­trate. In late 2020, the JLSC wrote to De Sil­va in­form­ing her that she was suc­cess­ful in the re­cruit­ment process and had placed third on a mer­it list for pro­mo­tion. 

How­ev­er, the JLSC warned that fi­nal con­sid­er­a­tion of her for the po­si­tion would take place af­ter the de­ter­mi­na­tion of the mis­con­duct al­le­ga­tions lev­elled against her. 

In Feb­ru­ary 2021, the JLSC pre­ferred two dis­ci­pli­nary charges against De Sil­va, and re­tired Ap­peal Court Judge An­dre Des Vi­gnes was ap­point­ed to chair the dis­ci­pli­nary tri­bunal. While the tri­bunal was con­duct­ing its work in 2021, the JLSC agreed to ex­tend the life of the mer­it list un­til De­cem­ber, last year. 

The tri­bunal was at an ad­vanced stage when Des Vi­gnes passed away in Jan­u­ary last year. 

Sev­er­al months lat­er, re­tired Mag­is­trate An­na Ryan was ap­point­ed to chair a new dis­ci­pli­nary pan­el to con­sid­er the charges. 

When the case came up for tri­al in Sep­tem­ber last year, High Court Judge Hay­den St Clair-Dou­glas, who was as­signed to pros­e­cute the case, failed to pro­duce any wit­ness­es. 

When the hear­ing was re­con­vened one month lat­er, Jus­tice St Clair-Dou­glas al­leged­ly in­di­cat­ed that the pros­e­cu­tion’s wit­ness­es were un­co­op­er­a­tive and re­luc­tant to tes­ti­fy. 

De Sil­va’s lawyers called on the tri­bunal to dis­miss the charges in light of the de­vel­op­ment but filed the law­suit as they were yet to re­ceive a re­sponse with the mer­it list set to ex­pire a sec­ond time. 

Through the law­suit, De Sil­va is seek­ing an or­der over the fu­ture pros­e­cu­tion of the dis­ci­pli­nary charges. 

“In the cir­cum­stances, there is no law­ful ba­sis or jus­ti­fi­ca­tion for the pros­e­cu­tion to con­tin­ue the pros­e­cu­tion of these charges and hence the JLSC ought to prop­er­ly dis­con­tin­ue the charges forth­with,” her lawyers said. 

She is al­so seek­ing an or­der com­pelling that she be ap­point­ed as a High Court Mas­ter with retroac­tive ef­fect if the charges are dis­missed. 

In her court fil­ings, De Sil­va’s lawyers claimed that the JLSC’s de­lay in de­ter­min­ing the dis­ci­pli­nary pro­ceed­ings was un­rea­son­able and un­fair as per­sons who ranked be­low her on the mer­it list were pro­mot­ed ahead of her. 

“It is con­trary to good pub­lic ad­min­is­tra­tion and the rep­u­ta­tion and in­tegri­ty of the ad­min­is­tra­tion of jus­tice for the pub­lic to be de­prived of the ben­e­fit of the ser­vices of an of­fi­cer who has ranked rel­a­tive­ly high, while oth­er per­sons ranked be­low her are be­ing ap­point­ed to serve,” they said. 

“The na­ture of the charges are such that they are rel­a­tive­ly triv­ial in na­ture and do not in any event nec­es­sar­i­ly im­pact the Ap­pli­cant’s abil­i­ty to dis­charge her pro­fes­sion­al du­ties and ex­pec­ta­tions as a Mas­ter of the High Court,” they added. 

They claimed that De Sil­va suf­fered un­nec­es­sary dis­tress, loss, and in­con­ve­nience from the de­lay as she lost out on the in­creased salary and ben­e­fits she would have re­ceived as a High Court Mas­ter. 

De Sil­va’s case was deemed fit for ur­gent hear­ing dur­ing the Ju­di­cia­ry’s va­ca­tion pe­ri­od and came up for hear­ing be­fore Jus­tice Ricky Rahim on De­cem­ber 20. 

Dur­ing the hear­ing, the JLSC agreed to ex­tend the life of the mer­it list and to keep a po­si­tion for De Sil­va va­cant pend­ing the de­ter­mi­na­tion of her case. 

De Sil­va was rep­re­sent­ed by Anand Ram­lo­gan, SC, Jayan­ti Lutch­me­di­al, Vishaal Siewsaran, Natasha Bis­ram, and Jared Ja­groo. 

The JLSC was rep­re­sent­ed by Rus­sel Mar­tineau, SC, and Tama­ra Toolsie, while Rishi Dass rep­re­sent­ed the AG’s Of­fice.