UNC goes to Privy Council following Appeal Court's decision

Wednesday, June 7, 2017 - 06:00

President Anthony Carmona is now free to swear in two new High Court Judges after the Court of Appeal struck out an injunction blocking the appointments originally scheduled for yesterday.

Delivering a unanimous oral decision at the Hall of Justice in Port-of-Spain yesterday, Appellate Judges Allan Mendonca, Nolan Bereaux and Peter Rajkumar dismissed the injunction which was granted by High Court Judge Frank Seepersad to attorneys representing former agriculture minister Devant Maharaj, following a late night court sitting almost 12 hours earlier.

In removing the injunction, the appeal panel also dismissed Maharaj’s substantive case in which he was claiming the Judicial and Legal Service Commission (JLSC) was not properly constituted to make the appointments and advise Carmona to swear in the new judges.

Maharaj was contending that at the time of the decision, the JLSC only had four members instead of the five as required under the Constitution. The appeal panel disagreed. The Appeal Court heard arguments for over four hours and gave its decision shortly before 5 pm. Seepersad, who heard the case via video conference in Tobago, began hearing arguments between 7.40 pm and 11.45 pm on Monday and gave his 22-page written judgment by 2 am yesterday.

The controversial issue about who is responsible for the appointment of judges was addressed in Seepersad’s ruling.

Chief Justice Ivor Archie had said that the Office of the President appoints judges, but Seepersad said the Constitution was clear that in accordance with Section 104 of the Constitution, “judicial appointments are made by the Office of the President, acting on the advice of the JLSC.”

“This court is satisfied that the commission was properly constituted and as such the substrata of the claim disappears,” Mendonca said.

Immediately following the ruling, Maharaj’s lawyer, Anand Ramlogan, SC, made an oral application for leave to appeal the decision to United Kingdom-based Privy Council.

His application was resisted by the State’s lead attorney Deborah Peake, SC, who said he needed to file an official application before doing so.

Mendonca agreed but assured Ramlogan he would be afforded a hearing on Monday during the court’s scheduled day for hearing motions, if he filed the appeal by midday today.

As Ramlogan did not apply for stay of the decision pending the final appeal, yesterday’s decision cleared the way for Carmona to host the swearing-in ceremony yesterday, but it was eventually deferred pending the determination of the appeal. The T&T Guardian learned that President’s House intends to liaise with its attorneys before moving ahead with the appointments.

Although the names of the two proposed judges have not been officially announced, the T&T Guardian understands they are Jacqueline Wilson and Kathy-Ann Waterman.

Wilson is the former Solicitor General of the Cayman Islands while Waterman served as Deputy Director of Public Prosecutions (DPP) before taking up an appointment as a judge in the Eastern Caribbean Supreme Court in St Vincent.

As part of the decision yesterday, the panel ordered Maharaj to pay the State and the JLSC’s legal costs in defending his claim. Ramlogan claimed he should not be ordered to as the case was brought in the public’s interest, but Peake disagreed as she described the claim as “frivolous and vexatious”.

In her submissions in support of the appeal, Peake rejected Maharaj’s argument over the missing commission member, as she said the Interpretation Act allowed commissions to make decisions even in circumstances when there is a vacancy. Ramlogan agreed but said it would depend on how long the commission was operating on reduced strength and if steps were made to fill the vacancy within a reasonable time.

The current JLSC members are Chief Justice Ivor Archie, head of the Public Service Commission Maureen Manchouck and retired judges Roger Hamel-Smith, Humphery Stollmeyer and Ernest Koylass, who was appointed on May 17.

Peake questioned Maharaj’s delay in bringing the lawsuit, as she said the commission members remained the same for over a year before the lawsuit was brought.

Ramlogan said his client was only able to file the lawsuit after he learned of the JLSC’s composition, following the debacle involving its handling of the short-lived judicial appointment of former chief magistrate Marcia Ayers-Caesar in April. He also rejected the query, as he noted the JLSC appointed its fifth member after his client had threatened the lawsuit.

As a secondary issue in his lawsuit, Maharaj is challenging Stollmeyer’s position, as the Constitution states the JLSC members are the Chief Justice, head of the PSC, a sitting or retired judge and two “persons with legal qualification...not in active practice as such”. Ramlogan claimed a retired judge does not fall in the last category, which was meant for lawyers.

Jamadar and Bereaux appeared to disagree with the claim, as they stated judges were attorneys before their appointment and were still qualified after retirement, albeit without permission to appear before courts for 10 years.

Maharaj was also represented by Alvin Pariagsingh, while Ravi Heffes-Doon appeared alongside Peake. The JLSC was represented by Ian Roach and Gregory Delzin for Carmona. The Law Association, which appeared in the case as a spectator party and made brief submission, was represented by Elton Prescott, SC, Rajiv Persad and Theresa Hadad.

SOURCE: www.guardian.co.tt (Derek Achong)