Derek Achong

The Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC) was not prop­er­ly con­sti­tut­ed for al­most a decade be­fore Unit­ed Na­tion­al Con­gress (UNC) ac­tivist De­vant Ma­haraj chal­lenged it, two years ago.

De­liv­er­ing a 14-page judg­ment in Ma­haraj’s case, at the Unit­ed King­dom’s Supreme Court, yes­ter­day morn­ing, the Privy Coun­cil ruled that on­ly one sit­ting or re­tired judge is al­lowed to be ap­point­ed to the JLSC, un­der the Con­sti­tu­tion.

Their judg­ment means that both for­mer pres­i­dents George Maxwell Richards and An­tho­ny Car­mona act­ed un­law­ful­ly when they oc­ca­sion­al­ly gave three-year JLSC terms to two re­tired judges, be­tween 2008 to 2016.

How­ev­er, their de­ci­sions do not di­rect­ly in­val­i­date the ap­point­ments of scores of judges, mag­is­trates and State le­gal of­fi­cers, which were done by the JLSC while it was im­prop­er­ly con­sti­tut­ed, as such flawed de­ci­sions are in­su­lat­ed from chal­lenge un­der the In­ter­pre­ta­tion Act.

In its judge­ment, the Privy Coun­cil un­der­took a de­tailed analy­sis of Sec­tion 110 of the Con­sti­tu­tion, which es­tab­lished the JLSC.

They agreed with Ma­haraj’s claim that re­tired judges could not qual­i­fy for the posts of two ex-of­fi­cio JLSC mem­bers, who are re­quired to have le­gal train­ing and are not in ac­tive prac­tice.

“The Board con­sid­ers that the dif­fi­cul­ty ex­em­pli­fied by this at­tempt to cat­e­gorise a serv­ing judge as ei­ther in, or not in, ac­tive prac­tice as a per­son with le­gal qual­i­fi­ca­tions, adds sig­nif­i­cant weight to the ar­gu­ment that it was not in­tend­ed that judges should be in­clud­ed with­in sec­tion 110(3)(b) at all,” La­dy Jill Black, who wrote the judge­ment, said.

As a sec­ondary is­sue in the case, the Privy Coun­cil main­tained that the JLSC re­quires five mem­bers to be prop­er­ly con­sti­tut­ed, al­though de­ci­sions can be made with a quo­rum of three.

Ma­haraj filed the law­suit fol­low­ing the fi­as­co in­volv­ing the JLSC’s short-lived ju­di­cial ap­point­ment of for­mer chief mag­is­trate Mar­cia Ay­ers-Cae­sar.

Ma­haraj ap­plied for an in­junc­tion in a last-ditched bid to block the swear­ing in of two new judges Jacque­line Wil­son and Kathy-Ann Wa­ter­man, that year.

The in­junc­tion was ini­tial­ly grant­ed by Jus­tice Frank Seep­er­sad fol­low­ing a marathon hear­ing the night be­fore the ap­point­ments were due to take place.

Seep­er­sad’s de­ci­sion on the in­junc­tion was re­versed by the Court of Ap­peal the fol­low­ing day, clear­ing the way for the ap­point­ments. The court al­so struck out Ma­haraj’s sub­stan­tive law­suit.

At the time when the Court of Ap­peal dis­missed Ma­haraj’s claim, the JLSC mem­bers were Chief Jus­tice Ivor Archie, head of the Pub­lic Ser­vice Com­mis­sion Mau­reen Man­chouck and re­tired judges Roger Hamel-Smith, Humphrey Stollmey­er and at­tor­ney Ernest Koy­lass, SC.

While the case was pend­ing, Hamel-Smith and Stollmey­er re­signed, cit­ing “per­son­al rea­sons” and un­fair pub­lic crit­i­cism of their work on the JLSC.

Ap­pel­late Judge Char­maine Pem­ber­ton and at­tor­ney David Patrick were sub­se­quent­ly ap­point­ed to re­place them.

Ma­haraj was rep­re­sent­ed by Richard Clay­ton, QC, Anand Ram­lo­gan, SC, Tom Richards and Alvin Pariags­ingh. The State was rep­re­sent­ed by Howard Stevens, QC.

About the JLSC

Un­der the Con­sti­tu­tion, the JLSC is man­dat­ed to ap­point, pro­mote and dis­ci­pline ju­di­cial of­fi­cers and State at­tor­neys work­ing in Gov­ern­ment agen­cies.

The mem­bers of the JLSC are the Chief Jus­tice, head of the Pub­lic Ser­vice Com­mis­sion (PSC), a re­tired or sit­ting judge and two per­sons with le­gal qual­i­fi­ca­tions that are “not in ac­tive prac­tice as such”.

Cur­rent­ly, the mem­bers are Chief Jus­tice Ivor Archie (chair­man), PSC chair­man Mau­reen Man­chouck, Ap­pel­late Judge Char­maine Pem­ber­ton (judge), Se­nior Coun­sel Ernest Koy­lass (at­tor­ney) and David Patrick (at­tor­ney).