The fight to re­move Jus­tice Chair­maine Pem­ber­ton from the Ju­di­cial and Le­gal Ser­vices Com­mis­sion (JLSC) is cre­at­ing a war of words be­tween the Unit­ed Na­tion­al Con­gress leader Kam­la Per­sad-Bisses­sar and the Of­fice of the Pres­i­dent, with the for­mer sug­gest­ing a hold be put on Per­ber­ton’s ap­point­ment for now.

In a se­ries of cor­re­spon­dence be­tween the two of­fices be­tween Feb­ru­ary 25 and March 13, 2019, Op­po­si­tion Leader Kam­la Per­sad-Bisses­sar and Pres­i­dent Paula-Mae Weekes seemed to butt heads over the Pres­i­dent’s in­ten­tion to re-ap­point Pem­ber­ton to the JLSC.

In the fi­nal let­ter dat­ed March 13, Per­sad-Bisses­sar ref­er­ences the first let­ter dat­ed Feb­ru­ary 25, in which the Pres­i­dent in­di­cat­ed she was seek­ing to fix the er­ror made in ap­point­ing Pem­ber­ton in the first place.

Last month, UNC sen­a­tor Ger­ald Ramdeen asked Weekes to re­con­sid­er the ap­point­ment of Pem­ber­ton to the JLSC af­ter the Privy Coun­cil ruled for­mer Pres­i­dent An­tho­ny Car­mona made an er­ror in ap­point­ing her in the first place. Mem­bers of the JLSC are ap­point­ed by the pres­i­dent and Pem­ber­ton was ap­point­ed to the JLSC in 2017.

Weekes ad­mit­ted then that there was an er­ror in the ap­point­ment af­ter UNC ac­tivist De­vant Ma­haraj ques­tioned the ap­point­ment. Ma­haraj’s con­cerns about Pem­ber­ton’s ap­point­ment stemmed from her pro­mo­tion to the ap­pel­late court ahead of oth­er se­nior High Court judges. The con­cern was al­so com­pound­ed by Pem­ber­ton’s quick ap­point­ment to the JLSC. Ma­haraj filed the law­suit fol­low­ing the fi­as­co in­volv­ing the JLSC’s ap­point­ment of for­mer chief mag­is­trate Mar­cia Ay­ers-Cae­sar. He ap­plied for an in­junc­tion in a fi­nal ef­fort to block the swear­ing-in of two new judges, Jacque­line Wil­son and Kathy-Ann Wa­ter­man.

The JLSC is chaired by Chief Jus­tice Ivor Archie and in 2017 in­clud­ed at­tor­ney Ernest H Koy­lass, head of the Pub­lic Ser­vice Com­mis­sion Mau­reen Man­chouck, Nicole Beaubrun-To­by and Pem­ber­ton. Ac­cord­ing to Gazette No 105, dat­ed Oc­to­ber 3, 2017, Pem­ber­ton was ap­point­ed to the JLSC on Sep­tem­ber 19, 2017, un­der sec­tion 110 (3) (b) of the Con­sti­tu­tion.

But the Privy Coun­cil, in its rul­ing, de­clared that there can­not be ap­point­ments to the JLSC, un­der sec­tion 110(3) (b), of ei­ther serv­ing judges or for­mer judges in re­tire­ment and that the com­mis­sion must com­prise five mem­bers.

The Pres­i­dent’s ref­er­ence to sec­tion 110 (3) (a) is cru­cial be­cause ac­cord­ing to the Con­sti­tu­tion, JLSC mem­bers ap­point­ed un­der that sec­tion may be “one from among per­sons who hold or have held of­fice as a judge of a Court hav­ing un­lim­it­ed ju­ris­dic­tion in civ­il and crim­i­nal mat­ters in some part of the Com­mon­wealth or a Court hav­ing ju­ris­dic­tion in ap­peal from any such Court.” This would clear­ly al­low for Pem­ber­ton or any oth­er judge’s ap­point­ment.

The Pres­i­dent’s ex­pla­na­tion there­fore im­plies that Pem­ber­ton’s ap­point­ment was in­tend­ed to be un­der 110 (3) (a), the sec­tion un­der which her ap­point­ment was con­sid­ered by the PM and Op­po­si­tion leader, as per the let­ters of con­sul­ta­tion is­sued to them and not un­der 110 (3) (b), which the Privy Coun­cil’s rul­ing speaks to. That would mean that ref­er­ence to sec­tion 110 (3) (b) of the Con­sti­tu­tion in the in­stru­ment of ap­point­ment was an “er­ror” and sec­tion 110 (3) (a) should have been ref­er­enced in the doc­u­ment in­stead.

Since then, how­ev­er, the Op­po­si­tion has kept the heat on the Pres­i­dent’s Of­fice over the JLSC ap­point­ments.

In a let­ter to Per­sad-Bisses­sar in March, Weekes “re­spect­ful­ly re­fused” the re­quests made by the Op­po­si­tion that she re­veal which judges made the short-list for the JLSC se­lec­tion and were by­passed in favour of Pem­ber­ton and whether there were any com­plaints about Chief Jus­tice Archie.

“In my view, it serves no use­ful pur­pose and, giv­en the re­cent leaks of cor­re­spon­dence be­tween our of­fices in a par­tic­u­lar dai­ly news­pa­per, it might serve on­ly to em­bar­rass un­nec­es­sar­i­ly those who were not put for­ward. Of course, I am al­ways open to sug­ges­tions from your good self for ap­pointees, ei­ther be­fore or af­ter con­sul­ta­tion,” Weekes ex­plained.

On the sec­ond is­sue of whether there have been any com­plaints to the Chief Jus­tice or the JLSC about the con­duct of Pem­ber­ton, Weekes ad­vised Per­sad-Bisses­sar to make her en­quiry di­rect­ly of the CJ or the JLSC as this would be the prop­er course.

In re­sponse, how­ev­er, Per­sad-Bisses­sar said she un­der­stood the process to mean that Weekes was “cor­rect­ing an over­sight and rec­ti­fy­ing an er­ror in Jus­tice Pem­ber­ton’s in­stru­ment of ap­point­ment as op­posed to giv­ing fresh con­sid­er­a­tion to the ap­point­ment of a suit­ably qual­i­fied and ap­pro­pri­ate can­di­date to fill a va­can­cy on the JLSC.”

Per­sad-Bisses­sar said she was “con­se­quent­ly pre­pared to ac­cept that your Ex­cel­len­cy has, by sheer co­in­ci­dence, se­lect­ed the same can­di­date (Jus­tice Pem­ber­ton) who was il­le­gal­ly ap­point­ed to the JLSC by her pre­de­ces­sor Pres­i­dent Car­mona, and is there­fore now rec­om­mend­ing the said per­son (Jus­tice Pem­ber­ton), to fill the very va­can­cy cre­at­ed by her (Jus­tice Pem­ber­ton’s) il­le­gal ap­point­ment.”

“I am al­so pre­pared to ac­cept that Your Ex­cel­len­cy re­mains gen­uine­ly re­cep­tive to sua­sion on this ap­point­ment and that Jus­tice Pem­ber­ton’s ap­point­ment is not a fore­gone con­clu­sion,” Per­sad-Bisses­sar said.

Per­sad-Bisses­sar al­so ref­er­enced an­oth­er let­ter from the Pres­i­dent, dat­ed March 1, 2019, in which Weekes in­di­cat­ed her of­fice was open to Per­sad-Bisses­sar propos­ing “al­ter­na­tive can­di­dates” for con­sid­er­a­tion for the JLSC but di­rect­ed her to con­tact judges and do its own due dili­gence.

Per­sad-Bisses­sar dis­missed that sug­ges­tion and in­stead called on the Pres­i­dent to hold her hand on any re-ap­point­ment to the JLSC un­til an­oth­er in­ves­ti­ga­tion ex­er­cise of pro­posed can­di­dates was com­plet­ed.