Sunday 26 May, 2019

Devant threatens President with legal action

Attorney Gerald Ramdeen is calling on President Paula Mae-Weeks to revoke the appointment of Justice Charmaine Althea Joy Pemberton from the Judicial and Legal Service Commission (JLSC).

Ramdeen is representing former government Minister Devant Maharaj who took the Attorney General before the Privy Council on the issue. The Privy Council ruled that there cannot be appointments to the JLSC under section 110 (3) b of the Constitution of either serving judges or former judges in retirement.

On October 3, 2017, Justice Pemberton was appointed to the JLSC for a period of three years with effect from September 19, 2017.

Ramdeen said this appointment must be revoked immediately.

“It is clear that this appointment is unconstitutional and illegal. Having regard to the importance of the JLSC, I consider it imperative that you take steps to revoke this appointment forthwith. Failure to do so will create a constitutional crisis because you, as Head of State and the ultimate guardian of the Constitution – which is the supreme law of the land – will be guilty of ignoring and disobeying a judgement from the highest court in our legal system. A refusal to act will amount to a serious dereliction and abdication of duty on your part.”

He said the individual independence of the JLSC is of paramount importance to upholding the constitution and the law. Maharaj’s attorney added that the appointment of a relatively junior judge and the consequent perception of personal loyalty may compromise the independence of the Commission.

Under section 104 of the Constitution, the JLSC has the power to advise the president on the appointment of Judges, other than the Chief Justice, the acting appointment of Judges and the revocation of such acting appointments.  The President must act upon the advice he receives from the Commission on all such matters.

Under section 111 of the Constitution the JLSC has the power to appoint persons to hold or act in prescribed public offices for which legal qualifications are required; including the power to make appointments on promotion, to transfer and confirm appointments and to remove and exercise disciplinary control over persons holding or acting in such offices.

Ramdeen said with this great responsibility, the need for independent members of the Constitution is great.

“The judiciary is in crisis mode at the moment and has been for some time past, with serious allegations swirling around the Chief Justice and a reference by the Law Association of Trinidad and Tobago to the Prime Minister for him to consider whether he should advise your good self that the Chief Justice should be investigated for misconduct pursuant to s.137 of the Constitution. The need for independent members of the Commission could therefore not be greater.”

“To this is to be added that at present public confidence in the judiciary is at an all-time low. On Tuesday 12th February 2019 Attorney General in answer to an urgent question regarding compliance with the declarations of the Judicial Committee indicated boldly that it did not lie within the powers of the government to rectify the illegality that presently exists. This statement confirms that the government has clearly holds the view that it is for Your Excellency to take the appropriate action to bring an end to this unconstitutional state of affairs.”

Ramdeen called on the President to revoke Justice Pemberton's appointment in five days time or have legal action taken.

“In the circumstances, I hereby call upon you to revoke the appointment of Madam Justice Pemberton as a member of the JLSC forthwith and to appoint a more suitable candidate to replace her. I ask that you do so within five (5) days hereof because the JLSC as presently constituted is illegal and unconstitutional because there is no judge who is appointed under s110(3) (a) of the Constitution.”

"TAKE NOTICE that should Your Excellency fail to act, I have been instructed to file a claim for administrative relief under the Judicial Review Act and the Constitution with a view to having an order of certiorari issued to quash the said appointment of Pemberton JA and a declaration that her appointment is under s110(3)(b) is unconstitutional and illegal. Time is hereby abridged given the urgency of this matter and the importance of the role and function of the JLSC under the Constitution.”

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