Appointment of Judges blocked: Injunction granted …State to appeal

June 06, 2017 in Regional

There will no swearing-in of two new High Court judges today.

Justice Frank Seepersad today granted an injunction to former Attorney General Anand Ramlogan who on behalf of his client, former Government Minister Devant Maharaj, requested that no judicial appointments take place until the hearing of its case which argues that the Judicial and Legal Services Commission (JLSC) is unconstitutionally and illegally comprised with the presence of two retired judges- Roger Hamel-Smith and Humphrey Stollmeyer.

Former journalist Kathy Ann Waterman and Jacqueline Wilson were scheduled to take the judicial oath today at 11:30 a.m.

However, Seepersad, in his ruling stated that the public interest and its confidence in the judiciary far outweighs these appointments.

The Attorney General has filed an appeal against Seepersad’s injunction. The appeal is set for 10.30 am.

An emergency sitting of the Court began at 7:30 p.m. yesterday and went on for hours- Seepersad delivered his ruling after midnight.

Seepersad, through video conferencing from Tobago, listened to the cases put forward by a battery of attorneys which included Ramlogan, Deborah Peake SC for the Attorney General, Ian Roach for the JLSC, G. Delzin and Shoshanna Lal for the President and Anthony Prescott for the Law Association.

In his judgement, Seepersad said there was merit in Maharaj’s case in challenging the JLSC.

Seepersad stated that in the exercise of the weighing process, the court is acutely aware that an immeasurable sense of “disappointment, frustration, and inconvenience” would be occasioned upon the judges to be sworn in.

“That interest though, of these individuals, cannot outweigh the greater public interest in ensuring that the provisions of the Constitution are strictly complied with and there can be no right to hold public office if the body charged with the mandate of making recommendations to His Excellency pursuant to s. 104 of the Constitution lacks the Constitutional legitimacy and/or authorization to make such a decision,” he stated.

“The court is resolute in its view that as a superior court of record and as the ultimate guardian of Constitutional compliance, and in the unique and exceptional circumstances that now exist, it must intervene as the Rule of Law uncompromisingly mandates that the exercise of public power under the Constitution must be engaged in a way that is lawful and must operate in a circumstance where there is strict compliance with the Constitution and any other relevant law.

Accordingly, the court hereby issues an order that the JLSC forthwith advise His Excellency the President to refrain from handing over to the two successful candidates any instrument of appointment to the office of Judge and to put on hold the administering of the oath provided for under s. 107 of the Constitution until the returnable date of this Notice of Application which said date shall be Friday 9th June, 2017 at 10:00 AM in SF05 at the High Court of Justice, San Fernando. On the said date, the court shall consider, based on the evidence before it, and in particular, the evidence of the affected third parties, whether or not the order made herein ought to continue” he stated.

Seepersad stated the damage that could be occasioned to the professional reputation of any individual who is appointed by the JLSC if it is established at trial that the JLSC is comprised in a manner that is inconsistent with s. 110 (3) of the Constitution.

“The Judiciary and all its composite components stand as the last bastion in the democratic process and extreme care and caution has to be exercised so as to prevent a circumstance where the public forms the view that the institution has lost its legitimacy,” he stated.

“History has demonstrated that revolutions of the past and the purging of the status quo have often been catalysed by situations where the confidence in and the legitimacy of lawful authority was lost. As societies evolve, the lessons of the past ought not to be dismissed but viewed and interpreted in such a way so as to ensure that the missteps, complacency, or advancement of insular concerns do not continue, thereby ensuring a stronger and more holistic democratic society,” he added.

Seepersad added that there was no information to suggest that there is a dire need for more Judges or more importantly, that the administration of justice is severely compromised and that this current state of affairs is such that without the two proposed appointments severe prejudice would be occasioned to members of the public.

He stated that Ramlogan has a “a strong arguable case” which is likely to succeed at the trial.

The appointment of Judges, he stated, is a critical, and perhaps, the most important function that the JLSC has to discharge and so the nature of its composition cannot be dismissed and the court has an obligation to ensure that the spirit of the Constitution is followed to the letter of the law.

Seepersad noted that the JLSC is charged with the exercise of the appointments, not only of Judges, but of Magistrates, the Solicitor General, the Chief Parliamentary Counsel, the Director of Public Prosecutions, the Registrar General, and the Chief State Solicitor.

“The very formation of the Judiciary and all of the major players in the administration of justice are appointed by the JLSC. Having regard to the tremendous power, influence, and impact that the JLSC can have on the legal landscape and, more importantly, on the citizens of this Republic, insofar as it is the JLSC’s recommendations which translate into appointments of officers charged with the responsibility of upholding the Constitution and the law, the composition and the operations of the JLSC is critical to this Democracy,” he stated.

This legal victory scored by Ramlogan comes on the heels of the Law Association’s overwhelming vote of no confidence in Chief Justice Ivor Archie and the JLSC.