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Henderson takes no-pay leave to join ICC

Sunday, June 15, 2014

Justice Geoffrey Henderson did not demit office before taking up his position at the International Criminal Court (ICC). Instead, in an unprecedented move, the Judicial and Legal Services Commission (JLSC) granted him a three-year no-pay leave to take up the highly respected post in The Netherlands. 



Justice Henderson took up the position back in November to serve the unexpired portion of the term made vacant when former judge Anthony Carmona resigned to take up the post of President. Henderson’s term at the ICC is expected to expire on March 10, 2021. The issue has been resuscitated by one senior counsel, who wrote to the Law Association of T&T questioning why Henderson was allowed to take the no-pay leave instead of demitting office as was expected. 


In the two-page letter, the SC said he assumed that Henderson went through the expected channels and demitted office. “It has since come to my attention that Justice Henderson has been granted no pay leave by the Judicial and Legal Services Commission to take up his appointment in the Hague,” he said. “It is significant that so far there had been no notification to the public of this decision,” he said.


“To the best of my knowledge, there is no precedent for such action in the circumstances of a judge leaving the jurisdiction to assume full-time occupation elsewhere,” he said. The SC questions whether the Constitution allows the JLSC to make this determination and listed several concerns about such action, including the fact that the constitutional complement of judges is effectively reduced by one. “In this case the number of judges available to sit in Criminal Courts is affected,” the letter said.


“The judge who is allowed to proceed on leave may retain seniority over some of his former colleagues who have remained in the jurisdiction and have continued to serve the public of T&T in accordance with their oath of office,” he said. The SC’s other concern was that the ICC-appointed judge left, knowing that his seniority and position in T&T were “secure.” 



“We may well see other judges applying to proceed to take up even short term appointments both within and without the jurisdiction with adverse effects on the administration of justice,” he said. One retired judge, who preferred to speak under the condition of anonymity, said he was surprised to learn that Justice Henderson was allowed such a prolonged leave of absence. He said he “would have thought and have thought all along that he demitted office” to take up the ICC posting. 


The Sunday Guardian also obtained an internal memo between the director of personnel administration and the court executive administrator, which informed the judiciary that Henderson’s leave was approved. The short memo states that Henderson was granted leave from 1 February 1, 2014 to January 31, 2017 “to enable him to take up employment as Judge at the International Criminal Court.” 



Chief Justice Ivor Archie yesterday confirmed that Justice Henderson had not demitted office but was indeed granted a three-year no-pay leave from his local duties.



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Archie: He was granted leave
In a brief interview during a short break at yesterday’s Dana Saroop Seetahal Symposium at the Noor Hassanali Auditorium, University of the West Indies, St Augustine, Archie would only say that Henderson was granted leave. When pressed further about the action that allowed Henderson to maintain his position with the Supreme Court, Archie said there was “Henderson’s seniority to consider.” Asked whether that was an important factor in the decision, Archie said “of course.”


The Sunday Guardian attempted to reach Law Association president Seenath Jairam on three occasions but was unsuccessful.


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