The Privy Council has Devant’s number again

The composition of the Judicial and Legal Service Commission (JLSC) was unconstitutional. That was the decision of the Privy Council earlier this month in Attorney General of Trinidad and Tobago v Devant Maharaj, [2019] UKPC 6. The JLSC is a commission established under the Constitution that either makes recommendations to the President regarding the appointment of judges other than the chief justice (section 104) or directly appoints persons to certain public offices where legal qualifications are required (section 111).

Section 110 of the Constitution sets out the membership of the five member JLSC: the Chief Justice, the Chair of the Public Service Commission and three additional appointed members. The qualifications of the “appointed members” are further set out in sub-section 110 (3) of the Constitution. Namely:

“The appointed members shall be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition as follows:

(a) one from among persons who hold or have held office as a judge of a Court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a Court having jurisdiction in appeal from any such Court;

(b) two from among persons with legal qualifications at least one of whom is not in active practice as such, after the President has consulted with such organisations, if any, as he thinks fit.”

In June 2017 two judges were scheduled to be sworn in by the President acting on advice from the JLSC. The JLSC at the time, however, was constituted with four members: the Chief Justice, the Chair of the Public Service Commission and two additional appointments (both of whom were retired judges). This left two issues to be resolved by the Privy Council: (1) whether a retired judge could be appointed to the JLSC under 110(3)(b) of the Constitution (quoted above); and (2) whether the JLSC must be comprised of five members, or can four members suffice?

The Privy Council held that the structure of 110(3)(a) and 110(3)(b) suggested that judges were to be appointed to the JLSC under sub-section (a) only, and lawyers were to be under sub-section (b). Neither a sitting judge nor a retired judge who did not otherwise return to legal practice after judicial retirement could be appointed to the JLSC under 110(3)(b).

Their Lordships also held that it was unusual to view a judge as being someone “in/not in active practice”, which lent further credence to the idea that judges were ineligible for appointment to the JLSC under this provision. Lastly, the reference to the President consulting “with such organisations” also suggests that lawyers alone – and not judges – were within the scope of sub-section (b). According to the court, “The reference to consulting with “organisations” brings to mind professional organisations, and it contrasts with section 110(3)(a), which has no provision for consultation. Although not a strong signal, given that the President need not consult with any organisation, this tends against construing section 110(3)(b) to include judges” (ibid., para. 41). Their Lordships also declared that section 110 of the Constitution requires that the JLSC be comprised of five members.

Practically speaking, this means that any decision or recommendation made by an improperly constituted JLSC could be challenged. For instance, it is arguable that anyone appointed by the JLSC under its section 111 remit could be deemed invalid, as the JLSC was improperly constituted and therefore had no power to make such appointment(s).

The impact of the ruling with respect to judicial appointments is slightly more convoluted, but equally devastating. Under section 104 of the Constitution “Judges, other than the Chief Justice, shall be appointed by the President, acting in accordance with the advice of the Judicial and Legal Service Commission”. Which means that the actual appointment is made by the President “acting in accordance with the advice” of the JLSC. If the JLSC was improperly constituted, then the President could not have discharged his/her constitutional obligation to receive, and act in accordance with, the JLSC’s “advice”. Any judicial appointment arising from an improperly constituted JLSC arguably cannot stand.

In the end, the Privy Council’s ruling clarified an important threshold question in determining who is eligible for appointment to one of the Constitution’s most important commissions. The implications of the ruling are somewhat unsatisfying, but the rule of law must be respected, and the fallout dealt with accordingly.

Comments

"The Privy Council has Devant’s number again"

More in this section