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Reforming the JLSC

Published: 
Sunday, July 8, 2018

The recent Report of the Committee on Judicial Appointments submitted to the Law Association by its chairman, former CCJ Justice of Appeal Desirée Bernard, made some very interesting comments of the reform of the Judicial and Legal Service Commission (JLSC).

This committee was established in June 2017 by the Law Association of T&T to review the processes of judicial appointments.

One of the problems of the judicial appointment process was encountered by the committee itself, namely the culture of secrecy that operates in the Judiciary. The following excerpt from the report confirms this:

“Members of the committee met with the chairman (Chief Justice) and members of the JLSC on July 17, 2017 at which meeting responses to some of the questions were obtained. However, though promised a written response to the questions, and despite follow-up communication with the CJ and the Director of Personnel Administration, the committee has not received the written responses to the questions as requested.” (p 17).

Welcome to judicial accountability. That one paragraph epitomises the very problem that they were addressing.

They also had a couple of factual inaccuracies in their report, such as this one:

“In Trinidad and Tobago, the Judicial and Legal Service Commission (JLSC), the independent body responsible for the appointment and promotion of judges, was established in 1962 under the Independence Constitution and, apart from the change made in respect of the appointment of the Chief Justice by the President in the 1976 Republic Constitution, the JLSC has remained unchanged for over 50 years.” (p 37).

At section 83 of the 1962 Constitution, the specific provisions were that the JLSC consisted of (i) the Chief Justice as Chairman, (ii) a Judge appointed on the advice of the Prime Minister, (iii) the Chairman of the Public Service Commission, (iv) two other members appointed on the advice of the Prime Minister of whom one should be a former judge and, in respect of the other appointment, there was a requirement for the Prime Minister to consult appropriate bodies and organisations in respect of that one. There was no specific requirement for legal qualifications and removal of such person could have been accomplished on prime ministerial advice, except if the person was a judge.

At section 110 of the 1976 Constitution, the composition was changed so that the JLSC now consists of (i) the Chief Justice as chairman, (ii) the chairman of the Public Service Commission, (iii) a judge or former judge appointed by the President after consultation with the Prime Minister and the Leader of the Opposition, (iv) two people appointed by the President after consultation with the Prime Minister and the Leader of the Opposition, both of whom must have legal qualifications and selected after the President has consulted such organisations as the President thinks fit and, one of whom is not in active practice.

The fact that the committee got this simple exercise of fact-checking wrong is hugely significant. They failed to recognise that the 1976 reform sought to tighten the noose around the requirement for legal qualifications in a manner that the 1962 Constitution did not.

Their proposed reform for a Judicial Appointments Commission to replace the JLSC is as follows:

The JAC should comprise seven people as follows:

“(a) Chief Justice, Chairman
(b) Retired Judge of the Court of Appeal
(c) Senior Attorney of not less than 15 years call who is a practicing member nominated by the Council of the Law Association
(d) Attorney of not less than 10 years call not in active practice appointed by the President
(e) Human Resources professional
(f) Two members drawn from outstanding persons from civil society, academia, or national organisations representative of business or community interests.” (p 39).

The committee advances an erroneous reason in their report as to why they have little confidence their recommendations will be implemented:

“The committee recognises that several of its recommendations will require legislative change and constitutional change. In fact, a special majority will be required. It appreciates fully that securing a special majority would be challenging in the country’s deeply fractured politics” (p 53).

The Government and the Opposition have united unanimously on FATCA legislation (2017), Anti-Gang legislation (2018), and the Anti-Terrorism legislation (2018) over the last year, all of which required special majorities, so the committee is wrong. The core issue is whether the judicial establishment really wants these changes.

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