Rumours of the Judicial and Legal Service Commission (JLSC) seeking to elevate three female High Court Judges to the Court of Appeal have been met with disquiet from some of their colleagues.
In a letter sent to JLSC chairman and Chief Justice Ivor Archie on Wednesday, which was obtained by Guardian Media, outspoken High Court Judge Frank Seepersad questioned whether it (JLSC) was moving to fill three upcoming vacancies within the Court of Appeal.
Appellate Judge Peter Jamadar is expected to be appointed to the Caribbean Court of Justice (CCJ) in July while his colleagues Rajendra Narine and Allan Mendonca are expected to retire later this year.
In the one-page letter, Seepersad questioned whether advertisements had been issued for the positions, as the merit list used for promotions of Appellate Judges Peter Rajkumar and Charmaine Pemberton in 2017 had expired after a year.
“It is my understanding that in the absence of a current and valid merit list, the process and method of appointment would require inter alia the effecting of advertisements, the attendance at interviews and the sitting of examinations including psychometric testing,” Seepersad said.
Seepersad also questioned whether the process of selection and appointments had been changed.
However, while Seepersad was still awaiting a response yesterday the JLSC issued an advertisement for the positions, which it is said it is seeking to fill by June this year. The advertisement stated that candidates should be High Court judges with three years of experience and told applicants they should apply no later than March 29.
“Persons who have applied previously and who still wish to be considered are advised to re-apply,” the advertisement stated.
Despite the information contained in the advertisement, judicial sources claimed a JLSC member recently contacted at least one of the three earmarked candidates and informed her of her pending promotion. According to the sources, the senior judge reportedly expressed reservations over the decision, as she pointed out the merit list for judicial promotions had expired and she had not reapplied for the position.
As a secondary issue, Seepersad questioned whether the JLSC was awaiting rectification of its flawed composition before deciding on the appointments.
The issue of the JLSC’s composition was raised by United National Congress (UNC) activist Devant Maharaj following the short-lived appointment of former chief magistrate Marcia Ayers-Caesar in 2017. Ayers-Caesar resigned amid public furore over the 53 cases she left unfinished upon taking up the appointment, cases which had to be restarted as a result of her promotion.
Maharaj filed a lawsuit challenging decisions by successive presidents to appoint more than one sitting or retired judge to the JLSC. He lost his claim in the local High Court and Court of Appeal, but in February the Privy Council agreed with Maharaj’s claim that retired judges could not qualify for the posts of two ex-officio JLSC members, who are required to have legal training and are not in active practice.
At the time when the Court of Appeal dismissed Maharaj’s claim, the JLSC members were Archie, Public Service Commission head Maureen Manchouck and retired judges Roger Hamel-Smith, Humphrey Stollmeyer and attorney Ernest Koylass, SC.
While the case was pending, Hamel-Smith and Stollmeyer resigned citing “personal reasons” and unfair public criticism of their work on the JLSC.
Appellate Judge Charmaine Pemberton and attorney David Patrick were subsequently appointed to replace them and to properly constitute the JLSC.
However, after the Privy Council weighed in on the issue, it was revealed Pemberton was appointed under the wrong subsection of the Constitution. In a letter to Maharaj, late last month, President Paula-Mae Weekes admitted the error was made under the tenure of her predecessor Anthony Carmona and promised to rectify it at “the earliest.”
Guardian Media sent an email to Weekes’ communications advisor Cheryl Lala yesterday afternoon to confirm if the error had since been rectified.
Lala did not respond up to late yesterday.
The issue of the process used by the JLSC for selection of judges was also considered by a special committee of the Law Association. The committee published a report in June last year and recommended that the JLSC be replaced with a more independent and transparent body. It also recommended that the proposed body should publish the eligibility criteria and the process of selection, as there are no extensive official publications on the issues currently.