Devant wins JLSC battle at Privy Council

Unit­ed Na­tion­al Con­gress (UNC) ac­tivist De­vant Ma­haraj has won the fi­nal leg of his le­gal bat­tle chal­leng­ing the com­po­si­tion of the Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC).

De­liv­er­ing a 14-page judge­ment Mon­day morn­ing, five British Law Lords over­turned a de­ci­sion of the lo­cal Court of Ap­peal to dis­miss Ma­haraj's claim over two re­tired judges be­ing ap­point­ed to the body.

In its judge­ment, the Privy Coun­cil was asked to in­ter­pret Sec­tion 110 of the Con­sti­tu­tion which es­tab­lish­es the JLSC. It states that the body should com­prise of the Chief Jus­tice, chair­man of the Pub­lic Ser­vice Com­mis­sion, a re­tired or sit­ting judge and two per­sons with le­gal qual­i­fi­ca­tions that are "not in ac­tive prac­tice as such.”

In the judge­ment, the Privy Coun­cil agreed with Ma­haraj's claim that re­tired judges could not fall with­in last seg­ment de­fined by the Con­sti­tu­tion.

"The Board con­sid­ers that the dif­fi­cul­ty ex­em­pli­fied by this at­tempt to cat­e­gorise a serv­ing judge as ei­ther in, or not in, ac­tive prac­tice as a per­son with le­gal qual­i­fi­ca­tions, adds sig­nif­i­cant weight to the ar­gu­ment that it was not in­tend­ed that judges should be in­clud­ed with­in sec­tion 110(3)(b) at all," La­dy Jill Black, who wrote the judge­ment, said.

While the de­ci­sion means that the JLSC was not prop­er­ly con­sti­tut­ed when Ma­haraj filed his claim in 2017, the Privy Coun­cil not­ed that ju­di­cial ap­point­ments made by the then JLSC would still be pro­tect­ed un­der the In­ter­pre­ta­tion Act.

Ma­haraj filed the law­suit fol­low­ing the fi­as­co in­volv­ing the JLSC's ap­point­ment of for­mer chief mag­is­trate Mar­cia Ay­ers-Cae­sar.

He had ap­plied for an in­junc­tion in a last-ditched bid to block the swear­ing in of two new judges, Jacque­line Wil­son and Kathy-Ann Wa­ter­man.

The in­junc­tion was ini­tial­ly grant­ed by Jus­tice Frank Seep­er­sad fol­low­ing a marathon hear­ing the night be­fore the ap­point­ments were due to take place.

Seep­er­sad's de­ci­sion on the in­junc­tion was re­versed by the Court of Ap­peal the fol­low­ing day, clear­ing the way for the ap­point­ments. The court al­so struck out Ma­haraj's sub­stan­tive law­suit.

At the time when the Court of Ap­peal dis­missed Ma­haraj's claim, the JLSC mem­bers were Chief Jus­tice Ivor Archie, head of the Pub­lic Ser­vice Com­mis­sion 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 body. Ap­pel­late Judge Char­maine Pem­ber­ton was sub­se­quent­ly ap­point­ed to the JLSC.

Ma­haraj was rep­re­sent­ed by Anand Ram­lo­gan, SC and Ger­ald Ramdeen.

- by Derek Achong

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