President moves to fire, re-hire commissioner

PRESIDENT Paula-Mae Weekes is proposing to the Judicial and Legal Service Commission (JLSC) to revoke the appointment of Appeal Court judge Charmaine Pemberton to the Judicial and Legal Service Commission (JLSC).

To correct the error in Pemberton’s appointment under section 110 (3) (b) of the Constitution, the President has proposed to have Pemberton re-appointed under the correct provision: section 110(3) (a).

Newsday understands Weekes wrote to the Leader of the Opposition this week with her proposal, seeking her views as directed by the Constitution for the appointment of members to the JLSC.

Weekes proposed, to correct the oversight, and as Pemberton’s original instrument of appointment could not be rectified, to revoke the judge’s appointment and reappoint her under the correct section for three years, the minimum period provided by section 126(3)(1) of the Constitution.

The “error” in Pemberton’s appointment was discovered after UNC activist Devant Maharaj, through his attorney Gerald Ramdeen, wrote to Weekes. She replied to Maharaj last week, explaining what the error was and said it would be corrected at the earliest opportunity.

She said, “While the relevant instrument of appointment indeed indicated that the Honourable Justice had been appointed, in accordance with the provisions of paragraph (b) of subsection (3) of section 110 of the Constitution, the letters of consultation to the Prime Minister and the Leader of the Opposition dated 21st July, 2017, and which preceded the appointment, referred to section 110 (3) (a).”

In a second letter, sent on Friday, Ramdeen asked the President to reconsider Pemberton’s appointment, suggesting that the “error” could not be corrected.

Maharaj had challenged the composition of the JLSC and two weeks ago, the Privy Council ruled in his favour and 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 five members.

According to the Constitution, JLSC members appointed under section 110(3) (a) may be "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," which would clearly allow for Pemberton's or any other judge's appointment.

The President's explanation in last week's letter, therefore, implied that Pemberton's appointment was intended to be under 110 (3) (a), the section under which her appointment was considered by the PM and Opposition Leader as per the letters of consultation issued to them, and not under 110 (3) (b), which the Privy Council's ruling speaks to. That would mean that reference to section 110 (3) (b) of the Constitution in the instrument of appointment was an "error" and section 110 (3) (a) should have been referenced in the document instead.

Ramdeen, in his second letter, questioned whether the error was actually in the instrument of appointment as suggested by the President and proposed that the letters of consultation might have been wrong instead.

He said “as a matter of logic and law,” the instrument of appointment superseded the consultation letters as it was the legal instrument by which the appointment was made and had legal status.

“It has legal and constitutional effect and is published in the Gazette as evidence and notice of the appointment to the world at large,” he said.

Ramdeen also suggested that the Leader of the Opposition, Kamla Persad-Bissessar, did not, in 2017 when Pemberton was appointed to the JLSC by former president Anthony Carmona, support the judge’s selection.

However, the President’s office said its records did not contain any response from Persad-Bissessar.