OPPOSITION Senator Gerald Ramdeen has written to President Paula-Mae Weekes asking that she revoke the appointment of Appeal Court judge Charmaine Pemberton as a member of the Judicial and Legal Service Commission (JLSC).
Ramdeen, who represents UNC activist Devant Maharaj, pointed to last week’s Privy Council ruling which held that there cannot be appointments to the JLSC, under section 110(3)(b) of the Constitution of either serving judges or former judges in retirement.
In is letter to Weekes, sent on Friday, Ramdeen said failure to revoke Pemberton’s appointment will “create a constitutional crisis.”
“Failure to do so will create a constitutional crisis because you, as Head of State and the ultimate guardian of the Constitution – which is the supreme law of the land – will be guilty of ignoring and disobeying a judgment from the highest court in our legal system.
“A refusal to act will amount to a serious dereliction and abdication of duty on your part,” Ramdeen told the President.
Ramdeen has given Weekes five days to revoke the appointment and “appoint a more suitable candidate…as a matter of extreme urgency.”
He has also told the President, if she fails to act, he intends to file a claim for administrative relief under the Judicial Review Act and the Constitution to have the appointment quashed and it be declared unconstitutional and illegal.
Members of the JLSC are appointed by the President.
He also noted that Pemberton, who was promoted to the Court of Appeal in 2016 and to the JLSC in 2017, was a relatively junior judge in the appellate court when she was elevated by “an improperly constituted JLSC.”
He said her appointment to the JLSC soon after her elevation to the higher court was “eyebrow-raising” and “without precedent.”
“Indeed, the JLSC bypassed several relatively senior judges of the High Court who were equally (if not better) qualified in favour of Justice Pemberton for promotion to the Court of Appeal.”
He said it was no secret that her appointment to the body, chaired by Chief Justice Ivor Archie, was of grave concern in the judiciary, legal profession and public.
“The simmering controversy caused by her appointment was rooted in the fact that the longstanding convention since independence is that a senior or retired judge from the Court of Appeal would usually be appointed to serve as a member of the JLSC.”
He added that there was good reason for this since the JLSC was constitutionally mandated to make appointments on promotion and transfer and to confirm appointments and to remove and exercise disciplinary control over persons holding judicial office.
“The wisdom of knowledge and experience that is required for the discharge of these functions in relation to persons holding judicial office is obvious.
“The JLSC is responsible for investigating, hearing and determining complaints against judges and it would be highly inappropriate, awkward and embarrassing for a junior judge to sit in judgment of her senior peers,” Ramdeen said.
He also added that it “militated against the perception that the Chief Justice was ‘stacking the deck’ by appointing judges who were promoted to the Court of Appeal under his chairmanship of the JLSC.”
“There is an expectation of loyalty born out of gratitude for the promotion when a junior judge is elevated ahead of her seniors from the high court bench,” he said.
Apart from pointing out the perception that personal loyalty may compromise the independence of the JLSC, Ramdeen said with the Judiciary currently in crisis mode because of the allegations against the Chief Justice, “the need for independent members of the commission could therefore not be greater.”
“To this is to be added that, at present, confidence in the Judiciary is at an all-time low.”
Ramdeen told the President that on Tuesday, Attorney General Faris Al-Rawi said Government did not have the power to rectify any illegality that presently existed with the composition of the JLSC, so “it is for Your Excellency to take the appropriate action to bring an end to this unconstitutional state of affairs.”
He pointed to several retired judges, including Margot Warner, Amrika Tiwary-Reddy, Zainool Hosein and former CJ Satnarine Sharma, who can easily replace Pemberton, even several senior judges, who are to retire within the next two years, including Alice Yorke-Soo Hon, Allan Mendonca, Nolan Bereaux and Rajendra Narine, whom he said were “eminently better qualified to serve as members of the JLSC.”
The President is currently in Barbados where she will deliver the feature address at the TT Students Association Educational Forum at UWI, Cave Hill tomorrow.
The JLSC is chaired by Archie and currently comprises head of the Public Service Commission Maureen Manchouck, attorney Ernest H Koylass, SC, Justice of Appeal Charmaine Pemberton, and Nicole Beaubrun-Toby, according to its 2017 report.
According to Gazette No 105, dated October 3, 2017, Pemberton was appointed to the JLSC on September 19, 2017, under section 110 (3)(b) of the Constitution.
The Privy Council, in its ruling, granted two declarations: That there cannot be appointments to the JLSC, under section 110(3)(b) of either serving judges or former judges in retirement; and that the commission must comprise of five members.
About the case
In 2017, former UNC senator Devant Maharaj successfully sought an injunction – granted at 3 am on June 6 by Justice Frank Seepersad – which temporarily blocked the appointments of former Deputy DPP Kathy Ann Waterman-Latchoo and Jacqueline Wilson.
Hours after the injunction was granted, an emergency appeal by the AG was heard the next day and in a unanimous decision, Justices of Appeal Allan Mendonca, Nolan Bereaux and Peter Rajkumar said they were satisfied the JLSC sat with a properly constituted quorum, which cleared the way for the two judges to be sworn in by the President.
According to the Privy Council’s ruling, delivered by Lady Black, everyone agreed that one judge or retired judge may be appointed to the JLSC under section 110(3) (a), but the following sub-section (110(3)(b) did not allow for more than one.
Lady Black also held that section 110 (3) (b) restricted the President’s choice from the pool of people with legal qualifications by stipulating that at least one of the two must be “not in active service as such."
Who is Justice Charmaine Pemberton?
According to a release on the Judiciary’s website, Justice Charmaine Pemberton was sworn in as a judge of the Court of Appeal by former President Anthony Thomas Aquinas Carmona on September 29, 2016.
She previously sat on the High Court bench in excess of 11 years prior to her promotion.
She was admitted to the Bar in 1983 after obtaining her LLB (Hons) from the University of the West Indies and her Legal Education Certificate from the Hugh Wooding Law School. Her legal career started with contributions to the firm E T V Kelly & Company and the Government at the Chief State Solicitor's Office. In 1987, she transferred to the Office of the Ombudsman and remained there for seven years until 1994. She then joined J D Sellier & Co where she practised in the Litigation and Commercial Departments, with limited exposure to Intellectual Property matters until 1999. She later practised as a sole practitioner for six months until July 2000, when she joined the Eastern Caribbean Supreme Court as its first Master.
Justice Pemberton was elevated to judge in 2003 and served in St Lucia and St Kitts and Nevis becoming the first female Judge in Grenada, where she served both the Criminal and Civil jurisdictions. In 2005, she returned to TT and was appointed judge of the High Court in the Civil Division.
She is a trained mediator and has authored two published papers.